This website publishes administrative rules on their effective dates, as designated by the adopting state agencies, colleges, and
universities.
| Rule |
Rule 901:3-4-01 | Definitions.
Effective:
February 12, 2024
As used in this chapter: (A) "Certified in food protection" means an individual
has met the certification requirements pursuant to Chapter 3717. of the Revised
Code. (B) "Director" means the director of Ohio department of
agriculture or an authorized designee of the director. (C) "Misbranded" as defined in section 3715.60 of the
Revised Code. (D) "Noncommercial retail food establishment" means a
retail food establishment as described in Chapter 3717. of the Revised Code,
conducted by any of the following: an agency of government, a church, school,
non-profit youth group whose membership consists primarily of persons aged
eighteen or younger, or an organization which is described in subsection
501(c)(3) of the Internal Revenue Code of 1986, Pub. L. No. 99-514, 100 Stat.
2085 (1986), U.S.C. 1, et seq., as amended and is tax exempt under subsection
501(a) of the Code. (E) "Noncommercial temporary retail food establishment"
means a temporary retail food establishment as described in Chapter 3717. of
the Revised Code conducted by any of the following: an agency of government, a
church, school, fraternal organization, service club organization, veterans
organization, volunteer fire organization, non-profit youth group whose
membership consists primarily of persons aged eighteen or younger, volunteer
emergency medical service organization, or an organization which is described
in subsection 501(c)(3) of the Internal Revenue Code of 1986 Pub. L. No.
99-514, 100 Stat. 2085 (1986), U.S.C. 1, et seq., as amended and is tax exempt
under subsection 501(a) of the Code, or any individual or group raising all of
its funds for the benefit of one of these organizations if such operation is
operated at an event for no more than five consecutive days, except when
operated for more than five consecutive days under division (E)(2) of section
3717.23 of the Revised Code. (F) "Process review inspection" means an inspection
made to determine if a risk level IV processing procedure is in compliance with
Chapter 3717. of the Revised Code. (G) "Standard inspection" means an inspection designed
to determine compliance with Chapter 3717. of the Revised Code, section
3715.551 of the Revised Code, and the rules adopted thereunder. (H) "Temporary retail food establishment" means a
retail food establishment that is operated at an event for not more than five
consecutive days, except when operated for more than five consecutive days
pursuant to division (E)(2) of section 3717.23 of the Revised
Code. (I) "Variance review" means a determination by the
licensor of compliance with a food processing variance issued by the Ohio
department of agriculture.
Last updated February 12, 2024 at 8:35 AM
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Rule 901:3-4-02 | License.
Effective:
February 12, 2024
(A) During the month of February of each
year, except as hereinafter provided, every person that operates a retail food
establishment shall apply for a license for that year from the licensor of
retail food establishments for the area in which the retail food establishment
is located. This provision shall apply to all retail food establishments except
seasonal retail food establishments, mobile retail food establishments,
temporary retail food establishments, and new retail food establishments opened
for business subsequent to March first of each year. All licenses issued to retail food establishments
expire pursuant to division (C) of section 3717.23 of the Revised Code. (B) An application for a license to
operate a new retail food establishment during any part of the year shall be
filed as hereinafter provided not less than ten days before the retail food
establishment is opened for business. If proper application has been made, the
facility layout and equipment specifications have been approved and complied
with on the final inspection, and all items are in compliance with Chapter
3717. of the Revised Code, Chapter 3717-1 of the Administrative Code, and this
chapter; the ten-day waiting period may be waived and the license issued. The
operator of a low risk and high risk mobile retail food establishment shall
make application for a license to the board of health of the health district in
which the operator's business headquarters are located. The operator of a
mobile retail food establishment whose business address is located outside of
Ohio shall make application for a license to the board of health having
jurisdiction over the operator's first Ohio location in any one licensing
year. A retail food establishment license issued to an operator of a mobile
retail food establishment by an approved health district, as provided in
Chapter 3717. of the Revised Code, shall be recognized by all other licensors
in this state. (C) The operator of a retail food
establishment shall make written application for a license to the licensor on
an application form prescribed or approved by the director which shall contain
all pertinent information related to the premises utilized for the retail food
establishment. (D) Fees for issuing and renewing retail
food establishment licenses, determined by the licensor in accordance with
section 3717.25 of the Revised Code, may be levied upon each retail food
establishment. These fees shall be used solely for paying the expense of the
administration and enforcement of Chapter 3717. of the Revised Code, Chapter
3717-1 of the Administrative Code, and this chapter. (1) In determining the
amount of the annual license fee, the licensor shall use the categories
established by rule 901:3-4-03 of the Administrative Code and the cost analysis
established by rule 901:3-4-04 of the Administrative Code. (2) If a license fee as
prescribed under paragraph (D) of this rule is not filed with the licensor or
postmarked on or before the due date, a penalty of twenty-five per cent of any
such fee shall be imposed and paid. (3) Fees authorized or
charged under paragraph (D) of this rule shall be in lieu of all retail food
establishment license fees required by the licensor on or with respect to the
operation of, ownership of, or employment by retail food establishments within
this state, except as provided in paragraph (C) of rule 901:3-4-03 of the
Administrative Code. (E) For each retail food establishment
license issued the following applicable amount shall be collected and
transmitted by the licensor to the director for deposit in the food safety fund
created in section 915.24 of the Revised Code and used for administering and
enforcing Chapter 3717. of the Revised Code, Chapter 3717-1 of the
Administrative Code, and this chapter: (1) Twenty-eight dollars
for each license that the licensor issues under the fee category specified in
paragraphs (A)(1), (A)(2), and (A)(4) of rule 901:3-4-03 of the Administrative
Code; or (2) Fourteen dollars for
each license that the licensor issues under the fee category specified in
paragraph (B)(1) of rule 901:3-4-03 of the Administrative Code. (F) The licensor shall submit a report of
all retail food establishment licenses and temporary retail food establishment
licenses issued during the period included in the fee transmittal completed in
accordance with paragraph (E) of this rule on a form prescribed or approved by
the director. (G) The operator of a retail food establishment that also
plans to cater shall apply for a catering food service operation endorsement to
the operator's retail food establishment license. A retail food
establishment license with such an endorsement shall be recognized by all other
licensors in this state. The operator of such an establishment shall maintain a
copy of the license at each catered event. (H) A license holder shall display the license for that
retail food establishment at all times at the licensed location. (I) Each operator of a mobile retail food
establishment shall conspicuously display the name of the operation, the city
of origin, area code, and telephone number on the exterior of the mobile unit.
The name and city of origin of the mobile retail food establishment shall be
displayed with individual lettering measuring at least three inches high and
one inch wide.
Last updated February 12, 2024 at 8:36 AM
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Rule 901:3-4-03 | License fees and categories.
Effective:
February 12, 2024
(A) The license fees established by a
licensor pursuant to section 3717.25 of the Revised Code for retail food
establishments as described in section 3717.01 of the Revised Code shall be
specified for the following categories: (1) Retail food
establishments, including micro markets, in which the interior premises is
under twenty-five thousand square feet for each risk level specified in rule
901:3-4-05 of the Administrative Code; (2) Retail food
establishments in which the interior premises is twenty-five thousand square
feet or more for each risk level specified in rule 901:3-4-05 of the
Administrative Code; (3) Temporary retail food
establishments as a per event fee or as a per day fee; and (4) Mobile retail food
establishments as specified in rule 901:3-4-05 of the Administrative Code and
low risk mobile retail food establishments as specified in rule 901:3-4-05 of
the Administrative Code which will be fifty per cent of the mobile retail food
establishment fee established in this rule. (B) The licensor may establish a
different fee for retail food establishments the licensor classifies
as: (1) Noncommercial retail
food establishments in all risk level categories, which shall be fifty per cent
of the fee established in paragraphs (A)(1) and (A)(2) of this rule, as
applicable; and (2) Noncommercial
temporary retail food establishments, which shall be fifty per cent of the fee
established in paragraph (A)(3) of this rule. (C) The licensor may establish fees
for: (1) Review of facility
layout and equipment specifications for retail food establishments, other than
mobile and temporary retail food establishments; (2) Any necessary
collection and bacteriological examination of food or water samples, or similar
services specified in rules adopted under section 3717.05 of the Revised Code;
and (3) Attendance at a
course of study offered by the licensor in food protection if the course is
approved under section 3717.09 of the Revised Code.
Last updated February 12, 2024 at 8:36 AM
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Rule 901:3-4-04 | Cost analysis and license fee calculation.
Effective:
February 12, 2024
(A) A cost analysis shall be conducted
each fiscal year. The licensor shall use data from the previous fiscal year to
calculate the actual cost of administering and enforcing Chapter 3717. of the
Revised Code, and the rules adopted thereunder for food service operations and
retail food establishments licensed by the licensor. The licensor shall
calculate the actual cost of administration and enforcement attributable to
each of the following components on forms prescribed or approved by the
director: (1) Risk level I, risk
level II, risk level III, and risk level IV food service operations and retail
food establishments; (2) Temporary food
service operations and temporary retail food establishments; and (3) Mobile retail food
establishments and mobile food service operations. (B) Except as specified in paragraph (D)
of this rule, the licensor shall calculate the cost attributable to each
component listed in paragraph (A) of this rule for administering and enforcing
Chapter 3717. of the Revised Code and the rules adopted thereunder for
operations licensed by the licensor. Cost shall not exceed all reasonable and
necessary direct cost and indirect cost. For the purposes of this rule indirect
cost means support cost which includes support staff cost plus overhead cost.
The licensor shall use a form prescribed or approved by the director of
agriculture and the director of health that includes the following
data: (1) A list of all
inspecting sanitarians who worked in the component; (2) The total hours
worked in the component by each inspecting sanitarian; (3) The total hours that
each inspecting sanitarian worked in the last fiscal year; (4) The total annual
wages or salary paid to each inspecting sanitarian; (5) The total amount for
fringe benefits paid on behalf of each inspecting sanitarian; (6) The total travel
costs for each inspecting sanitarian; (7) The support costs for
the component as determined by one of the following methods: (a) Use of actual support cost not to exceed thirty per cent of
the total program cost for items, such as salary and fringe benefits of the
health commissioner, the director of environmental health, supervisory staff,
clerical staff, utilities, rent, supplies, equipment, liability insurance, and
training; or (b) Use of an indirect cost rate of thirty per cent of the wages
or salaries and fringe benefits of inspecting sanitarians attributable to the
component. (8) The sampling and
laboratory costs for the component other than those costs specified in
paragraph (C) of rule 901:3-4-03 of the Administrative Code; (9) Funding for the
component which includes revenues obtained from license fees and penalty
fees. (C) The licensor shall calculate the
license fee for each retail food establishment category listed in rule
901:3-4-03 of the Administrative Code as follows: (1) For a temporary
retail food establishment: (a) Using fees established on a per event basis, the temporary
food service operation and temporary retail food establishment category cost
divided by the number of temporary food service operation and temporary retail
food establishment licenses issued. If a licensor elects to establish a
noncommercial fee for temporary food service operations and temporary retail
food establishments, the category cost is divided by the number of licenses
issued for commercial temporary food service operations and commercial
temporary retail food establishments plus fifty per cent of the number of
licenses issued for noncommercial temporary food service operations and
noncommercial temporary retail food establishments; or (b) Using fees established on a per day basis, the temporary food
service operation and temporary retail food establishment category cost divided
by the total number of days for which temporary food service operation and
temporary retail food establishment licenses were issued. If a licensor elects
to establish a noncommercial fee for temporary food service operations and
temporary retail food establishments, the category cost is divided by the
number of days for which commercial licenses were issued plus fifty per cent of
the number of days for which temporary licenses were issued for noncommercial
temporary food service operations and noncommercial temporary retail food
establishments. (2) For retail food
establishments classified as risk level I, risk level II, risk level III, and
risk level IV retail food establishments: (a) Determine support costs in accordance with paragraph (B)(7)
of this rule. Equally allocate support costs attributable to the risk level
food service operations and retail food establishments component by dividing
the support costs of the risk level food service operations and retail food
establishments component by the total number of commercial risk level I, risk
level II, risk level III, and risk level IV food service operations and retail
food establishments plus fifty per cent of the noncommercial operations
classified by risk level; (b) Determine the total number of food service operations and
retail food establishments in each risk level category. If the licensor elects
to establish noncommercial categories for risk level food service operations
and risk level retail food establishments the total number of food service
operations and retail food establishments in each risk level category is the
number of commercial risk level food service operations and commercial risk
level retail food establishments plus fifty per cent of the number of
noncommercial risk level food service operations and noncommercial risk level
retail food establishments; (c) Determine the number of standard inspection periods for each
risk level category using the inspection time factor. The number of standard
inspection periods is the minimum number of inspections required for each risk
level category multiplied by the inspection time factor, the product of which
is multiplied by the total number of food service operations and retail food
establishments in each risk level category. The inspection time factor is the
ratio of the average amount of time per inspection for all risk levels relative
to the average time per inspection for the risk level I less than twenty-five
thousand square feet operations. The inspection time factor for: (i) Risk level I less
than twenty-five thousand square feet is 1.00, and twenty-five thousand square
feet or above is 1.88; (ii) Risk level II less
than twenty-five thousand square feet is 1.25, and twenty-five thousand square
feet or above is 2.03; (iii) Risk level III less
than twenty-five thousand square feet is 1.64, and twenty-five thousand square
feet or above is 4.84; and (iv) Risk level IV less
than twenty-five thousand square feet is 2.21, and twenty-five thousand square
feet or above is 5.16. (d) Determine the total number of standard inspection periods by
summing the standard inspection periods for all risk level
categories; (e) Determine the non-support cost per standard inspection
period: subtract the support cost from the total actual cost of the component
and divide this amount by the total number of standard inspection
periods; (f) Determine the non-support cost for each risk level category
by using the following formula: A B C = The non-support cost
for each risk level, where A is equal to the non-support cost per standard
inspection period, B is equal to the standard inspection period for the risk
level category, and C is equal to the inspection time factor for the risk level
category. (g) Determine the maximum license fee that may be established:
add the non-support cost for each risk level category to the support cost per
license issued. (3) The mobile retail
food establishment and the mobile food service operation category cost divided
by the number of mobile retail food establishments and mobile food service
operation licenses issued. (D) Additional considerations.
(1) The total sanitarian
hours that may be accounted for in calculating the cost attributable to the
food service operations and retail food establishments identified in paragraph
(A)(1) of this rule shall not exceed an average of nine hours per risk
classified food service operation and retail food establishment. (2) Anticipated increases
in costs that may be attributable to a component are limited to known increases
for which official notification or board action has been
documented. (E) The licensor shall provide a
proportional reduction in the fees to be charged in the next license period if
a licensor included anticipated costs in the calculation of licensing fees and
the total amount of anticipated costs was not incurred. (F) The licensor shall provide for a
proportionate reduction in fees to be charged in the next license period if
discovered through an audit by the auditor of state or any other means that the
licensor has charged or is charging a license fee that exceeds the amount that
should have been charged. (G) The licensor shall reduce the fees to
be charged in the next license period when a reduction is imposed as a penalty
under division (C) of section 3717.071 of the Revised Code.
Last updated February 12, 2024 at 8:36 AM
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Rule 901:3-4-05 | Risk level of retail
food establishments.
Effective:
February 12, 2024
The licensor shall determine the risk level based
on the highest risk level activity of the retail food establishment in
accordance with the following criteria: (A) Risk level I poses potential risk to
the public in terms of sanitation, food labeling, sources of food, storage
practices, or expiration dates. (1) Examples of risk
level I activities include, but are not limited to, an operation that offers
for sale or serves: (a) Coffee, self-service hot beverage dispenser drinks,
self-service fountain drinks, prepackaged non-time/temperature controlled for
safety food beverages; (b) Pre-packaged refrigerated or frozen time/temperature
controlled for safety food; (c) Fresh unprocessed fruits and vegetables; (d) Pre-packaged non-time/temperature controlled for safety
food; or (e) Baby food or formula. (2) A "food delivery
operation" as defined in division (H) of section 3717.01 of the Revised
Code shall be classified as risk level I. (3) A "micro
market" as defined in paragraph (B) of rule 3717-1-01 of the
Administrative Code shall be classified as a risk level I. (B) Risk level II poses a higher
potential risk to the public than risk level I because of hand contact or
employee health concerns but minimal possibility of pathogenic growth exists.
Examples of risk level II activities include, but are not limited
to: (1) Handling, heat
treating, or preparing non-time/temperature controlled for safety
food; (2) Holding for sale or
serving time/temperature controlled for safety food at the same proper holding
temperature at which it was received; (3) Heating individually
packaged, commercially processed time/temperature controlled for safety food
for immediate service; or (4) Hand dipping of
commercially manufactured ice cream. (C) Risk level III poses a higher
potential risk to the public than risk level II because of the following
concerns: proper cooking temperatures, proper cooling procedures, proper
holding temperatures, contamination issues or improper heat treatment in
association with longer holding times before consumption, or processing a raw
food product requiring bacterial load reduction procedures in order to sell the
product as ready-to-eat. Examples of risk level III activities include, but are
not limited to: (1) Handling, cutting, or
grinding raw meat products; (2) Cutting or slicing
ready-to-eat meats and cheeses; (3) Assembling, partially
cooking, or cooking time/temperature controlled for safety food that is
immediately served, held hot or cold, or cooled; (4) Operating a soft
serve ice cream or frozen yogurt machine; (5) Reheating in
individual portions only; or (6) Heating of a product
from an intact hermetically sealed package and holding the product
hot. (D) Risk level IV poses a higher
potential risk to the public than risk level III because of concerns associated
with: handling or preparing food using a procedure with several preparation
steps that includes reheating of a product or ingredient of a product where
multiple temperature controls are needed to preclude bacterial growth. Examples
of risk level IV activities include, but are not limited to: (1) Reheating bulk
quantities of leftover time/temperature controlled for safety food more than
once every seven days; (2) Operating a heat treatment dispensing
freezer; (3) Catering food service operations as
defined in division (G) of section 3717.01 of the Revised Code; (4) Offering as ready-to-eat a raw
time/temperature controlled for safety animal food or a food with these raw
ingredients; (5) Using freezing as a means to achieve
parasite destruction; (6) Preparing food for a primarily high
risk clientele including immune-compromised or elderly individuals in a
facility that provides either health care or assisted living; (7) Using time as a public health control
for time/temperature controlled for safety food; (8) Non-continuous cooking of raw
time/temperature controlled for safety food; (9) Performing activities requiring a
HACCP plan, as defined in paragraph (B)(52) of rule 3717-1-01 of the
Administrative Code; or (10) Activities requiring a variance for
the process. (E) The licensor shall determine the risk
level of mobile retail food establishment based on the highest risk level
activity of mobile retail food establishments in accordance with the criteria
listed in paragraphs (E)(1) to (E)(2) of this rule: (1) Low risk poses a
potential risk to the public in terms of sanitation, food labeling, sources of
food, and food storage practices in the mobile. Low risk activities
include: (a) Holding for sale or service pre-packaged refrigerated
or frozen time/temperature controlled for safety foods; and (b) Offering for sale or serving pre-packaged
non-time/temperature controlled for safety foods. (2) High risk poses a
higher potential risk to the public than low risk because of concerns
associated with: proper receiving, holding, and cooking temperatures; proper
cooling procedures; processing a raw food that has undergone parasite or
bacterial load reduction procedures in order to sell or serve it as
ready-to-eat; handling or preparing food using a procedure with several
preparation steps that includes reheating of a product or ingredient of a
product where multiple temperature controls are needed to preclude bacterial
growth; offering as ready-to-eat a raw time/temperature controlled for safety
meat, poultry product, fish, or shellfish; or a food with these raw
time/temperature controlled for safety items as ingredients; or using time in
lieu of temperature as a public health control for time/temperature controlled
for safety food. Examples of high-risk activities include, but are not limited
to: (a) Assembling or cooking time/temperature controlled for
safety food that is immediately served, held hot or cold, or
cooled; (b) Operating a heat treatment dispensing
freezer; (c) Reheating bulk quantities or individual portions of
leftover time/temperature controlled for safety food; (d) Heating a food from an intact, hermetically sealed
package and holding it hot; or (e) Operating as a mobile catering food service operation
as defined in paragraph (L) of rule 3701-21-01 of the Administrative
Code.
Last updated February 12, 2024 at 8:36 AM
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Rule 901:3-4-06 | Retail food establishment inspection frequency.
Effective:
February 12, 2024
A licensor shall inspect retail food establishments
at least every fifteen months as follows: (A) Risk level I: at least one standard
inspection each licensing period. With the inspection of micro markets, the
license holder must be notified prior to inspection and at minimum is to be
completed by the end of the next business day after notification. (B) Risk level II: at least one standard
inspection each licensing period. (C) Risk level III: at least two standard
inspections each licensing period. (D) Risk level IV: at least two standard
inspections and if applicable two process review inspections, and if applicable
two variance reviews each licensing period. The licensor may conduct process
review inspections on the same visits as standard inspections and when
applicable verify the terms of any variance that may have been
issued. (E) Temporary retail food establishments:
at least one inspection during the period of operation. (F) New retail food establishments: one
standard inspection not later than thirty days after the license has been
issued. If less than six months remain in a licensing period, the licensor may
elect to eliminate one standard inspection, one process review inspection and
one variance review for an establishment classified as risk level III or
IV. (G) Mobile retail food establishments: at
least one standard inspection each licensing period.
Last updated February 12, 2024 at 8:37 AM
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Rule 901:3-4-07 | Approval of facility layout and equipment specifications.
Effective:
March 21, 2024
No person, firm, association, organization,
corporation, or government operation shall construct, install, provide, equip,
or extensively alter a retail food establishment until the facility layout and
equipment specifications therefore have been submitted to and approved in
writing by the licensor. When the facility layout and equipment specifications
are submitted to the licensor, the licensor shall act upon them within thirty
calendar days after date of receipt. The facility layout and equipment
specifications shall be approved by the licensor in accordance with the rules
adopted pursuant to section 3717.05 of the Revised Code stating the criteria
for facility layout and equipment specifications.
Last updated March 21, 2024 at 8:34 AM
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Rule 901:3-4-08 | Appeal procedures.
Effective:
February 12, 2024
(A) This rule prescribes procedures for
appealing the proposed denial, suspension, or revocation of a retail food
establishment license and appealing the suspension of a license for a violation
presenting a clear and present danger to the public health. An appeal of a
proposed denial, suspension, or revocation of an endorsement on a retail food
establishment license and appeal of the suspension of an endorsement on a
license for a violation presenting a clear and present danger to the public
health shall be conducted in the same manner. (B) In the case of a proposal to deny,
suspend, or revoke a retail food establishment license, the licensor shall
provide the license holder with written notice of the proposed action and the
cause for the action. The notice shall describe the procedure for appealing the
proposed denial, suspension, or revocation. (1) The licensor shall
provide written notice by certified mail, return receipt requested, or by hand
delivery. If the notice is returned because of failure of delivery, the
licensor shall send the notice by regular mail to the retail food establishment
location listed on the license or conspicuously post the notice at an entrance
of the operation, and posting or mailing constitutes notice. (2) After receiving the
notice, to obtain a hearing, the license holder must submit a written request
that the licensor receives within fifteen days. (3) The licensor shall
schedule a hearing before the licensor or a hearing officer designated by the
licensor. If the licensor provides a hearing officer, the hearing officer shall
be licensed to practice law in Ohio and shall not have participated in any
manner in the decision to take the action against the license
holder. (4) The licensor shall
mail or hand-deliver notice of the date, time, and place of the hearing to the
license holder no less than ten days before the scheduled date. (5) At the hearing, the
license holder shall have the opportunity to present the license holder's
case orally or in writing and to confront and cross-examine witnesses. The
license holder may be represented by counsel and may review the case record
before the hearing. If the licensor is a board of health of a city or general
health district or the authority having the duties of the board of health under
section 3709.05 of the Revised Code, and a hearing officer has been designated,
a member of that board does not have to be present at the hearing. (6) If the hearing is
before a hearing officer, the hearing officer shall prepare a written
recommendation as to the validity of the licensor's action, which shall
rest solely on the evidence presented at the hearing and the statutory and
regulatory provisions governing the licensor's action. The hearing officer
shall describe the basis for the hearing officer's recommendation, but
need not prepare a full opinion or formal findings of fact and conclusions of
law. The hearing officer shall mail by certified mail, return receipt
requested, or hand-deliver the recommendation to the licensor and the license
holder. Either party may file objections to the recommendation provided that
the objections are received by the licensor within five days of receiving a
copy of the recommendation from the hearing officer. (7) After reviewing any
timely objections, the licensor may by motion take additional evidence or
approve, modify, or disapprove the hearing officer's recommendation and
shall enter an order in the record of the proceedings. (8) If the licensor does
not receive a timely request for a hearing, the licensor may immediately enter
an order as proposed in the notice. (C) In the case of a suspension of a
license issued for a violation presenting clear and present danger to the
public health, the licensor shall provide the license holder with written
notice of the action, the cause for the action, and the effective date of the
action. The written notice shall specify the procedure for appealing the
suspension and shall list the address to which a hearing request shall be sent
or delivered. The license holder may appeal the suspension by mailing or
hand-delivering a written request for a hearing to the address specified in the
notice. If a hearing is requested, the hearing shall be heard not later than
two business days after the request is received by the licensor. At the
hearing, the license holder shall have the opportunity to present the license
holder's case orally or in writing and to confront and cross-examine
witnesses. The license holder may be represented by counsel and may review the
case record before the hearing. At the hearing, the licensor shall determine
whether the clear and present danger to the public health continues to
exist. (D) Any determination made or order
entered by the licensor pursuant to this rule shall be made as
follows: (1) If the licensor is a
board of health of a city or general health district or the authority having
the duties of the board of health under section 3709.05 of the Revised Code, by
majority vote of the members of the board or authority present at a meeting at
which there is a quorum; (2) If the director is
acting as the licensor pursuant to section 3717.11 or 3717.111 of the Revised
Code, by decision of the director. If the licensor conducts the hearing, the
licensor may immediately render a decision denying, suspending, or revoking a
license, or render a decision removing or continuing a license suspension. If
the licensor is a board of health of a city or general health district or the
authority having the duties of the board of health under section 3709.05 of the
Revised Code, the determination or order may be considered and made at a
meeting without publication or advertisement, and may become effective without
such publication or advertisement, recording or certifying. An order is not
effective until the order is recorded in the licensor's record of the
proceedings.
Last updated February 12, 2024 at 8:37 AM
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Rule 901:3-4-09 | Complaint investigation procedure.
Effective:
February 12, 2024
(A) The licensor shall accept all
complaints regarding retail food establishments. The complaints shall be
investigated in accordance with a written policy of the licensor. The policy
shall include at a minimum: (1) A complaint form or
electronic database to be used to document the receipt of all complaints and
contains at least the following: (a) The name and address of the retail food establishment;
and (b) A statement of facts about the complaint including the
date and time of any alleged occurence. (2) The time frame for
conducting investigations of complaints according to the potential risk to the
public health, and (3) The criteria for
declining to investigate a complaint. (B) The licensor shall: (1) Document the results
and disposition of the licensor's investigation on a food inspection form
prescribed or approved by the director; (2) Maintain the
complaint form, any laboratory results, food inspection form documenting the
investigation findings, and any other records pertaining to the complaint in
the retail food establishment's file or electric database; (3) Investigate each
complaint in a fair and complete manner; and (4) If requested, report
the results to the complainant orally or in writing upon completion of the
investigation.
Last updated February 12, 2024 at 8:37 AM
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Rule 901:3-4-10 | Dispute mediation procedure.
Effective:
February 12, 2024
A licensor or license holder may request mediation
by the Ohio department of agriculture to resolve a dispute regarding the
application of Chapter 3717. of the Revised Code, Chapter 3717-1 of the
Administrative Code, or this chapter pertaining to retail food establishments.
The request shall be in writing and contain a detailed description of the
dispute including any applicable supporting documentation. The Ohio department
of agriculture shall investigate the case and the findings transmitted to all
affected entities. A request for mediation does not affect the right of any
party to seek any other remedy available by law.
Last updated February 12, 2024 at 8:37 AM
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Rule 901:3-4-11 | Enforcement support.
Effective:
February 12, 2024
(A) For the purpose of this rule
"enforcement support" means the provision of any of the following by
the Ohio department of agriculture in the license suspension, license
revocation, prosecution, or proposed prosecution of a person for a violation of
the provisions of Chapter 3717. of the Revised Code, Chapter 3717-1 of the
Administrative Code, or this chapter: (1) Consultation regarding the facts
of the case; (2) Case preparation assistance if
the county prosecutor or legal representative requests assistance; (3) Expert testimony; (4) Evidence collection;
and (5) Review and comment on case
documentation. (B) To request enforcement support a
board of health or the authority having the duties of a board of health must
request assistance to the director on a form prescribed by the
director.
Last updated February 12, 2024 at 8:38 AM
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Rule 901:3-4-12 | Articles - requirement to cease use.
Effective:
February 12, 2024
(A) Any article such as a utensil,
material, or piece of equipment may be removed from use in a retail food
establishment or a food service operation by the licensor if the article
presents a public health hazard. For the purposes of this rule, a public health
hazard is presented by any article whose use can reasonably be expected to
result in the contamination or adulteration of a food product based upon its
state of repair, cleanliness, location, or construction. The licensor may tag
any such article and prohibit the article's use by the license
holder. (B) A tag removing an article from use
shall state the reason for the article's removal from use, and
either (1) The provisions for
returning the article to use, or (2) The disposition of
the article if the article cannot be satisfactorily reconditioned. (C) No license holder shall remove or
permit to be removed, a tag without the permission of the
licensor. (D) Any action that may be taken by a
licensor under paragraphs (A) to (C) of this rule may be taken by a health
commissioner or other person employed by the licensor if the person or health
commissioner is authorized by the licensor to take the action.
Last updated February 12, 2024 at 8:38 AM
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Rule 901:3-4-13 | Records.
Effective:
February 12, 2024
A license holder of a retail food establishment
shall: (A) For the purpose of any investigation
provide the licensor, upon request and within a reasonable time, proof of
origination of the foods sold at the retail food establishment. (B) Maintain records required as a condition of a variance or a
required HACCP plan, as defined in paragraph (B)(52) of rule 3717-1-01 of the
Administrative Code, for a period of one year.
Last updated February 12, 2024 at 8:38 AM
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Rule 901:3-4-14 | Collection of food samples for the purposes of identifying adulteration and misbranding.
Effective:
February 12, 2024
(A) A licensor may submit a sample for
testing to the Ohio department of agriculture consumer protection laboratory
when: (1) A food or food
additive is the subject of a consumer complaint; (2) At the request of a
consumer after a physician has isolated an organism from the consumer as the
physician's patient; (3) A food or food
additive is suspected of having caused an illness; (4) A food or food
additive is suspected of being adulterated or misbranded; (5) A food or food
additive is subject to verification of food labeling and standards of identity;
or (6) The director
considers a sample analysis necessary or the sample is part of an Ohio
department of agriculture food sample monitoring program. (B) Samples taken for any reason
specified in paragraph (A) of this rule, should when possible, be from a
non-compromised package and of the same lot, code, or production unit as the
food or food additive that is of concern. As used in this rule,
"non-compromised" means securely wrapped and packaged as purchased,
not opened by the complainant, or otherwise handled in a manner that might
result in the discrediting of the sample results. (C) The licensor shall take reasonable
care to ensure that the sample is: (1) Not contaminated by
the sampling or shipping process; (2) Maintained at a
temperature that is appropriate to help minimize additional growth of bacteria,
other organisms, and deterioration until received by the
laboratory; (3) Collected, submitted,
and shipped in accordance with any guidelines for such sample submission as
directed by the consumer protection laboratory; and (4) For a non-compromised
sample a chain of custody is documented. For the purposes of this rule,
"chain of custody" means the documentation of the history of the
handling of a sample by persons in charge of a sample from the initial sampling
to receipt and analysis by the analyzing laboratory. (D) The Ohio department of
agriculture's consumer protection laboratory may charge a licensor a
reasonable fee for the analysis of a sample unless the sample is considered to
be an official sample as defined in rules promulgated pursuant to section
901.43 of the Revised Code or the fee has been waived by the
director. (E) No person shall refuse to furnish a
sample for analysis upon a demand and tender of payment.
Last updated February 12, 2024 at 8:38 AM
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Rule 901:3-4-15 | Embargo of food.
Effective:
February 12, 2024
(A) For the purposes of this rule,
"expired" means: (1) In the case of infant formula, the
"use by" date required by 21 C.F.R. 107.20 (as published on April 1,
2021) has passed; or (2) In the case of baby food, that any
expiration date, "use by" date, or sale date established by state or
federal law or marked on the container by the manufacturer, processor, or
packager has passed. (B) Whenever a licensor finds or has
cause to believe within a retail food establishment or food service operation
in the licensor's jurisdiction that any food is adulterated, or so
misbranded as to be dangerous or fraudulent, within the meaning of sections
3715.01 and 3715.52 to 3715.72 of the Revised Code, or that infant formula, or
baby food is expired, the licensor shall affix to the item a tag giving notice
that the item is, or is suspected of being, adulterated, misbranded, or expired
and has been embargoed. The tag shall warn all persons not to remove or dispose
of the item by sale or otherwise until permission for removal or disposal is
given by the licensor or the court. No person may remove or dispose of a
detained or embargoed item by sale or otherwise without such
permission. (C) When a food, infant formula, or baby
food that has been embargoed has been found by the licensor to be adulterated,
misbranded, or expired, the licensor shall petition the municipal or county
court in whose jurisdiction the item is embargoed for an order for condemnation
of the item. When the licensor has not found within ten days that an item
embargoed is adulterated, misbranded, or expired, the licensor shall remove the
tag or other marking. (D) If the court finds that an embargoed
item is adulterated, misbranded, or expired, the item shall, after entry of the
decree, be destroyed at the expense of the claimant thereof, under the
supervision of the licensor, and all court costs, fees, storage, and other
proper expenses shall be taxed against the claimant of the item or the
claimant's agent; provided, that when the adulteration or misbranding can
be corrected by proper labeling or processing of the item, the court, after
entry of the decree and after such costs, fees, and expenses have been paid and
a good and sufficient bond, conditioned that the item shall be so labeled or
processed, has been executed, may by order direct that the item be delivered to
the claimant thereof for labeling or processing under the supervision of the
licensor. The expense of supervision shall be paid by the claimant. The bond
shall be returned to the claimant of the item on representation to the court by
the licensor that the item is no longer in violation of sections 3715.01 and
3715.52 to 3715.72 of the Revised Code, and that the expenses of supervision
have been paid. (E) Whenever the licensor finds in any
retail food establishment or food service operation, any meat, seafood,
poultry, vegetable, fruit, or other perishable foods that are unsound, or
contain any filthy, decomposed, or putrid substance, or that may be poisonous
or deleterious to health or otherwise unsafe, the foods are declared to be a
nuisance, and the licensor shall forthwith condemn or destroy the foods, or in
any other manner render the items unsalable as human food. (F) Any action that may be taken by a
licensor under paragraphs (A) to (E) of this rule may be taken by a health
commissioner or other person employed by the licensor if the person or health
commissioner is authorized by the licensor to take the action.
Last updated February 12, 2024 at 8:39 AM
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Rule 901:3-4-16 | Certification in food protection.
Effective:
February 12, 2024
(A) Persons seeking approval for a course
of study for persons to be certified in food protection, shall make application
to the Ohio department of health in accordance with Chapter 3701-21 of the
Administrative Code. (B) Any person recognized by the Ohio
department of health as "certified in food protection" shall also be
recognized as such by the Ohio department of agriculture and any other licensor
of retail food establishments in Ohio. (C) The licensor shall mandate person in
charge certification for risk level I, II, III, and IV retail food
establishments and high risk mobile retail food establishments for the reasons
provided in paragraph (K) of rule 3701-21-25 of the Administrative Code. This
paragraph does not apply to micro markets as defined by rule 3717-1-01 of the
Administrative Code.
Last updated February 29, 2024 at 12:21 PM
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Rule 901:3-4-17 | State survey procedures for program evaluation.
Effective:
February 12, 2024
(A) Pursuant to section 3717.11 of the
Revised Code the director shall survey at least once every three years the
retail food establishment program of every licensor for retail food
establishments. The licensor shall provide the director with all requested
information to complete the survey. (B) The director shall provide the survey
methodology to all licensors. The methodology shall include: (1) A review of the
administrative aspects of the retail food establishment program; (2) A field review of the
application of the requirements set forth in Chapter 3717. of the Revised Code,
Chapter 3717-1 of the Administrative Code, and this chapter; and (3) A review of other
performance standards relevant to the conduct of the retail food establishment
program. (C) The director shall survey the retail
food establishment program in accordance with the survey methodology and shall
determine whether the licensor is qualified to administer and enforce Chapter
3717. of the Revised Code, Chapter 3717-1 of the Administrative Code, and the
applicable rules of this chapter. After the survey is complete, the director
shall classify the licensor as approved or provisional and provide a survey
report to the licensor. If the licensor is classified as provisional, the
director shall provide the licensor with: (1) A set time frame for
correcting the deficiencies; (2) Procedures for
program disapproval that the department will pursue if the licensor fails to
correct the major deficiencies revealed by the survey; and (3) An opportunity to
request a meeting with a representative of the director to discuss the
deficiencies. (D) The Ohio department of agriculture
shall reevaluate a board or authority's provisional retail food
establishment program in the established time frame to determine if the program
is in compliance. If in compliance, the director shall classify the licensor as
approved. If the deficiencies have not been corrected, the director shall
propose to disapprove the licensor, or shall propose to revoke the approval,
whichever is appropriate. (E) The licensor may request an informal
hearing on the director's proposed determination if a written request is
received by the director no later than fifteen days after the date of mailing
the proposed determination. The informal hearing shall be conducted before the
director or the director's authorized representative no later than thirty
days after the director received the request for hearing. At the hearing, a
representative of the licensor may present information orally and in writing.
The director shall issue a written decision no later than thirty days after the
conclusion of the informal hearing.
Last updated October 21, 2024 at 10:24 AM
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Rule 901:3-4-18 | Reinstatement of a licensor.
Effective:
February 12, 2024
The director may reinstate a licensor if all the
conditions in division (D) of section 3717.11 of the Revised Code are met. Upon
reinstatement, the director shall provide the licensor a set-time frame for
survey which shall be no later than one year after reinstatement. The licensor
shall be classified as provisional until the licensor has successfully passed
the survey. If the director determines that the licensor is qualified to
administer and enforce Chapter 3717. of the Revised Code, Chapter 3717-1 of the
Administrative Code, and the applicable rules of this chapter, the director
shall classify the licensor as approved. If the director determines that the
licensor is not qualified, the director may propose to revoke the approval in
accordance with paragraph (D) of rule 901:3-4-17 of the Administrative
Code.
Last updated February 12, 2024 at 8:39 AM
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