Chapter 3701-21 | Food Service Operations

Rule 3701-21-01 | Definitions.

• Effective: September 1, 2024
• Promulgated Under: 119.03

As used in Chapter 3701-21 of the Administrative Code:

(A) "a_w" means water activity, which is a measure of the free moisture in a food, is the quotient of the water vapor pressure of the substance divided by the vapor pressure of pure water at the same temperature.

(B) "Board of health" means the board of health of any city or general health district, or the authority having the duties of a board of health as authorized by section 3709.05 of the Revised Code.

(C) "Catering food service operation" means a food service operation, as defined in section 3717.01 of the Revised Code where food is prepared for serving at a function or event held at an off-premise site, for a charge determined on a per-function or per-event basis. The charge is contracted for on the basis of the entire luncheon, banquet, or event and not on the basis of an individual meal or lunch.

(D) "Critical control point inspection" means an inspection designed to identify and prevent food handling procedures that epidemiological data have shown to lead to outbreaks of foodborne disease.

(E) "Director" means the director of health or an authorized designee of the director.

(F) "Employee" means the license holder, person in charge, food employee, person having supervisory or management duties, person on the payroll, family member, volunteer, person performing work under contractual agreement, or other person working in a food service operation.

(G) "Equipment" means an article that is used in the operation of a food service operation such as a freezer, grinder, hood, ice maker, meat block, mixer, oven, reach-in refrigerator, scale, sink, slicer, stove, table, temperature measuring device for ambient air, vending machine, bulk water machine, or warewashing machine. "Equipment" does not include apparatuses used for handling or storing large quantities of packaged foods that are received from a supplier in a cased or overwrapped lot, such as hand trucks, forklifts, dollies, pallets, racks, or skids.

(H) "Food" means a raw, cooked, or processed edible substance, ice, beverage, or ingredient used or intended for use or for sale in whole or in part for human consumption, or chewing gum.

(I) "Food service operation" means an operation as defined in section 3717.01 of the Revised Code. Two or more food serving areas, each supplied by separate kitchens, are considered two or more separate food service operations and are to be licensed individually even though located in the same building or structure.

(J) "Health district" means each city and general health district established by section 3709.01 of the Revised Code.

(K) "Licensor" means one of the following:

(1) The board of health of any city or general health district, or the authority having the duties of a board of health as authorized by section 3709.05 of the Revised Code, approved under section 3717.11 of the Revised Code;

(2) The director of agriculture acting under section 3717.11 of the Revised Code or 3717.111 of the Revised Code with respect to the licensing of retail food establishments; or

(3) The director of health acting under section 3717.11 of the Revised Code or 3717.111 of the Revised Code with respect to the licensing of food service operations.

(L) "Mobile catering food service operation" means an operation that prepares food in a licensed high risk mobile food service operation or prepares food in a risk level IV food service operation or risk level IV retail food establishment for serving at a function or event for a charge determined on a per-function or per-event basis. The charge is contracted for on the basis of the entire function or event and not on the basis of an individual meal or serving.

(M) "Mobile food service operation" means an operation as defined in section 3717.01 of the Revised Code.

(N) "Noncommercial food service operation" means a food service operation as described in Chapter 3717. of the Revised Code, conducted by any of the following: an agency of the 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, U.S.C. 1, et seq., as amended) and is tax exempt under subsection 501(a) of the code.

(O) "Noncommercial temporary food service operation" means a temporary food service operation as described in Chapter 3717. of the Revised Code, conducted by any of the following: an agency of the 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, 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 3717.43 of the Revised Code.

(P) "Operator" means the person, association, corporation, or governmental operation that is responsible for conducting a food service operation.

(Q) "Person in charge" means the individual present at a food service operation or retail food establishment who is responsible for the operation at any given time.

(R) "Potentially hazardous food": means time/temperature controlled for safety food as defined in paragraph (V) of this rule.

(S) "Premises" means:

(1) The physical facility, its contents, and the contiguous land or property under the control of the license holder; or

(2) The physical facility, its contents, and the land or property not described under paragraph (S)(1) of this rule if its facilities and contents are under the control of the license holder and may impact food service operation or retail food establishment personnel, facilities, or operations, and a food service operation or retail food establishment is only one component of a larger operation such as a health care facility, hotel, motel, school, recreational camp, or prison.

(T) "Seasonal food service operation" means an operation as defined in section 3717.01 of the Revised Code.

(U) "Standard inspection" means an inspection designed to determine compliance with Chapter 3717. of the Revised Code and the rules adopted under it.

(V) "Time/temperature controlled for safety food" or "TCS food" means a food that needs time/temperature control for safety to limit pathogenic microorganism growth or toxin formation.

(1) TCS food includes:

(a) An animal food that is raw or heat-treated; a plant food that is heat-treated or consists of raw seed sprouts, cut melons, cut leafy greens, cut tomatoes or mixtures of cut tomatoes that are not modified in a way so that they are unable to support pathogenic microorganism growth or toxin formation, or garlic-in-oil mixtures that are not modified in a way so that they are unable to support pathogenic microorganism growth or toxin formation; and

(b) Except as specified in paragraph (V)(2)(d) of this rule, a food that because of the interaction of its a_w and pH values is designated as product assessment (PA) needed in table A or B of this rule.

	pH of 4.6 or less	pH greater than 4.6 to 5.6	pH greater than 5.6
aw less than or equal to 0.92	non-TCS food	non-TCS food	non-TCS food
aw greater than 0.92 to 0.95	non-TCS food	non-TCS food	PA
aw greater than 0.95	non-TCS food	PA	PA

	pH less than 4.2	pH 4.2 to 4.6	pH greater than 4.6 to 5.0	pH greater than 5.0
aw less than 0.88	non-TCS food	non-TCS food	non-TCS food	non-TCS food
aw 0.88 to 0.90	non-TCS food	non-TCS food	non-TCS food	PA
aw greater than 0.90 to 0.92	non-TCS food	non-TCS food	PA	PA
aw greater than 0.92	non-TCS food	PA	PA	PA

(2) TCS food does not include:

(a) An air-cooled hard-boiled egg with shell intact, or an egg with shell intact that is not hard-boiled, but has been pasteurized to destroy all viable salmonellae;

(b) A food in an unopened hermetically sealed container that is commercially processed to achieve and maintain commercial sterility under conditions of non-refrigerated storage and distribution;

(c) A food that because of its pH or a_w value, or interaction of a_w and pH values, is designated as a non-TCS food in table A or B of paragraph (V)(1) of this rule;

(d) A food that is designated as product assessment (PA) needed in table A or B of paragraph (V)(1) of this rule and has undergone a product assessment showing that the growth or toxin formation of pathogenic microorganisms that are reasonably likely to occur in that food is precluded due to:

(i) Intrinsic factors including added or natural characteristics of the food such as preservatives, antimicrobials, humectants, acidulants, or nutrients,

(ii) Extrinsic factors including environmental or operational factors that affect the food such as packaging, modified atmosphere such as reduced oxygen packaging, shelf life and use, or temperature range of storage and use, or

(iii) A combination of intrinsic and extrinsic factors; or

(e) A food that does not support the growth or toxin formation of pathogenic microorganisms in accordance with paragraph (V)(2)(a), (V)(2)(b), (V)(2)(c) or (V)(2)(d) of this rule even though the food may contain a pathogenic microorganism or chemical or physical contaminant at a level sufficient to cause illness or injury.

(W) "Temporary food service operation" means an operation as defined in section 3717.01 of the Revised Code.

(X) "Variance review" means a determination by the licensor of compliance with a food processing variance issued by the Ohio department of health.

Last updated September 3, 2024 at 8:57 AM

Supplemental Information

Authorized By: 3717.04, 3717.51
Amplifies: 3717.09
Five Year Review Date: 5/16/2029
Prior Effective Dates: 2/23/1996 (Emer.), 12/21/2001 (Emer.), 3/21/2002, 12/1/2004, 4/2/2015

Rule 3701-21-02 | License.

• Effective: September 1, 2024
• Promulgated Under: 119.03

(A) During the month of February of each year, and not later than March first, except as hereinafter provided, every operator of a food service operation proposing to operate during any part of the licensing year will apply for a license for that year from the board of health of the health district in which the food service operation is located.

This provision applies to all food service operations except seasonal food service operations, mobile food service operations, temporary food service operations, and new food service operations opened for business subsequent to March first of each year. All licenses issued to a food service operation expire pursuant to division (C) of section 3717.43 of the Revised Code.

(B) An application for a license to operate a new food service operation during any part of the year will be filed as hereinafter provided not less than ten days before the food service operation 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 and Chapter 3717-1 of the Administrative Code, the ten-day waiting period may be waived and the license issued.

(C) The operator of a mobile food service operation will 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 food service operation whose business address is located outside of Ohio will 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 food service license issued to an operator of a mobile food service operation by an approved health district, as provided in Chapter 3717. of the Revised Code, will be recognized by all other licensors in this state.

(D) The operator of a food service operation will make written application for a license to the licensor on an application form prescribed by the director of health which is to contain all pertinent information related to the portions of the premises utilized for the food service operation.

(E) Fees for issuing and renewing food service operation licenses, determined by the licensor in accordance with section 3717.45 of the Revised Code, may be levied upon each food service operation. These fees are to be used solely for paying the expense of the administration and enforcement of Chapter 3717. of the Revised Code and Chapter 3717-1 of the Administrative Code and this chapter.

(1) In determining the amount of the annual license fee, the licensor will use the categories established by rule 3701-21-02.1 of the Administrative Code and the cost analysis established by rule 3701-21-02.2 of the Administrative Code.

(2) If a license fee as prescribed under this paragraph is not filed with the licensor or postmarked on or before the date it is due, a penalty of twenty-five per cent of any such fee will be imposed and paid.

(3) Fees authorized or charged under this paragraph will be in lieu of all food service operation license fees mandated by the licensor on or with respect to the operation of, ownership of or employment by food service operations within this state, except as provided in paragraph (C) of rule 3701-21-02.1 of the Administrative Code.

(F) For each food service operation license issued the following applicable amount will be collected and transmitted by the licensor to the director of health for deposit in the general operations fund created in section 3701.83 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 3701-21-02.1 of the Administrative Code;

(2) Fourteen dollars for each license that the licensor issues under the fee category specified in paragraph (B)(1) of rule 3701-21-02.1 of the Administrative Code; and

(3) Six dollars for each license that the licensor issues under the fee category specified in paragraph (A)(5) of rule 3701-21-02.1 of the Administrative Code.

(G) The licensor is responsible for submitting a report of all food service operation licenses and temporary food service operation licenses issued during the period included in the fee transmittal completed in accordance with paragraph (F) of this rule.

(H) The operator of a catering food service operation will make application for a license to the board of health of the health district in which the operator's facility is located. A license issued to an operator of a catering food service operation by a licensor, as provided in section 3717.43 of the Revised Code, is to be recognized by all other licensors in this state. The operator of a food service operation that caters will maintain a copy of the license at each catered event.

(I) A licensee will display the license for that food service operation at all times at the licensed location.

(J) Each operator of a mobile food service operation will conspicuously display the name of the operation, the city of origin, and area code and telephone number on the exterior of the mobile unit. The name and city of origin of the mobile food service operation will be displayed with individual lettering measuring at least three inches high and one inch wide.

Last updated September 3, 2024 at 8:58 AM

Supplemental Information

Authorized By: 3717.04, 3717.51
Amplifies: 3717.43, 3717.47
Five Year Review Date: 5/16/2029
Prior Effective Dates: 12/18/1953, 12/21/2001 (Emer.), 3/21/2002

Rule 3701-21-02.1 | License fees and categories.

• Effective: September 1, 2024
• Promulgated Under: 119.03

(A) The licensor will establish fees for:

(1) Food service operations in which the interior premises is under twenty-five thousand square feet for each risk level specified in rule 3701-21-02.3 of the Administrative Code;

(2) Food service operations in which the interior premises is twenty-five thousand square feet or more for each risk level specified in rule 3701-21-02.3 of the Administrative Code;

(3) Temporary food service operations as a per event fee or as a per day fee;

(4) Mobile food service operations as specified in rule 3701-21-02.3 of the Administrative Code , and low risk mobile food service operations as specified in rule 3701-21-02.3 of the Administrative Code which will be fifty per cent of the mobile food service operation fee established in this rule; and

(5) Each vending machine location. Additionally, as specified in section 3717.07 of the Revised Code, the license fee for vending machine locations will not be increased by more than the percentage of increase in the consumer price index for all urban consumers (United States city average, all items), prepared by the United States department of labor, bureau of labor statistics, for the immediately preceding calendar year.

(B) The licensor may establish a different fee for food service operations it classifies as:

(1) Noncommercial food service operations in all risk level categories, which will be fifty per cent of the fee established in paragraphs (A)(1) and (A)(2) of this rule, as applicable; and

(2) Noncommercial temporary food service operations, which will 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 food service operations, other than mobile and temporary food service operations, or similar reviews conducted for vending machine locations;

(2) Any necessary collection and bacteriological examination of samples from food service operations, or similar services specified in rules adopted under section 3717.05 of the Revised Code;

(3) Attendance at a certification in food protection course offered by the licensor in food protection if the course is approved under section 3717.09 of the Revised Code.

Last updated September 3, 2024 at 8:58 AM

Supplemental Information

Authorized By: 3717.04, 3717.51
Amplifies: 3717.45
Five Year Review Date: 5/16/2029
Prior Effective Dates: 2/20/1992 (Emer.), 1/9/1995, 11/27/2000, 9/7/2001, 12/21/2001 (Emer.)

Rule 3701-21-02.2 | Cost analysis and calculation.

• Effective: September 1, 2024
• Promulgated Under: 119.03

(A) A cost analysis will be conducted each fiscal year. The licensor will 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 will calculate the actual cost of administration and enforcement attributable to each of the following components on forms prescribed or approved by the director of agriculture and the director of health:

(1) Risk level I, risk level II, risk level III, and risk level IV food service operations and retail food establishments;

(2) Mobile food service operations and mobile retail food establishments;

(3) Temporary food service operations and temporary retail food establishments; and

(4) Vending machine locations.

(B) Except as specified in paragraph (D) of this rule, the licensor will 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 is not to exceed all reasonable and necessary direct and indirect costs . For the purpose of this rule, indirect cost means support cost which includes support staff cost plus overhead costs. The licensor will 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 environmental health specialists who worked in the component;

(2) The total hours worked in the component by each inspecting environmental health specialist;

(3) The total hours that each inspecting environmental health specialist worked in the last fiscal year;

(4) The total annual wages or salary paid to each inspecting environmental health specialist;

(5) The total amount for fringe benefits paid on behalf of each inspecting environmental health specialist;

(6) The total travel costs for each inspecting environmental health specialist;

(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 environmental health specialists attributable to the component.

(8) The sampling and laboratory costs for the component other than those costs specified in paragraph (C)(2) of rule 3701-21-02.1 of the Administrative Code; and

(9) Funding for the component which includes revenues obtained from license fees and penalty fees.

(C) The licensor will calculate the license fee for each food service operation category listed in rule 3701-21-02.1 of the Administrative Code as follows:

(1) The vending machine location category cost divided by the number of vending machine location licenses issued.

(2) The mobile food service operation and the mobile retail food establishment category cost divided by the number of mobile food service operation and the mobile retail food establishment licenses issued.

(3) For a temporary food service operation:

(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 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.

(4) For food service operations classified as risk level I, risk level II, risk level III, and risk level IV food service operations:

(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 risk level I, risk level II, risk level III, and risk level IV commercial food service operations and retail food establishments plus fifty per cent of noncommercial operations classified by risk;

(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 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.

The number of standard inspection periods is the minimum number of inspections mandated 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.

(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 x B x 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 minimum number of inspections 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.

(D) The total environmental health specialist 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 is not to exceed an average of nine hours per risk classified food service operation and retail food establishment.

(E) 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.

(F) The licensor will provide for a proportionate 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.

(G) The licensor will provide for a proportionate reduction in fees to be charged in the next license period if it is 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.

(H) The licensor will 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 September 3, 2024 at 8:58 AM

Supplemental Information

Authorized By: 3717.04, 3717.51
Amplifies: 3717.45
Five Year Review Date: 5/16/2029
Prior Effective Dates: 12/7/1990

Rule 3701-21-02.3 | Risk level of food service operations.

• Effective: September 1, 2024
• Promulgated Under: 119.03

The licensor will determine the risk level based on the highest risk level activity of the food service operation 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. Examples of risk level I activities include, but are not limited to, an operation that offers for sale or serves:

(1) Coffee, self-service hot beverage dispenser drinks, self-service fountain drinks, prepackaged non-time/temperature controlled for safety beverages;

(2) Pre-packaged refrigerated or frozen time/temperature controlled for safety foods;

(3) Fresh, unprocessed fruits and vegetables;

(4) Pre-packaged non-time/temperature controlled for safety foods; or

(5) Baby food or formula.

A "food delivery sales operation" as defined in division (H) of section 3717.01 of the Revised Code will 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 foods 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 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 immuno-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 animal food;

(9) Performing activities requiring a HACCP plan; or

(10) Activities requiring a variance for the process.

(E) Mobile food service operations based on the highest risk level activity in accordance with the following criteria:

(1) Low risk poses a potential risk to the public in terms of sanitation, food labeling, sources of food, storage practices, hand contact, hand washing, and employee health concerns but minimal possibility of pathogenic growth exists and includes the following activities:

(a) Holding for sale or service pre-packaged refrigerated or frozen time/temperature controlled for safety foods in equipment that complies with paragraph (KK)(3) of rule 3717-1-04.1 of the Administrative Code; 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 product requiring 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 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 of a product, 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 September 3, 2024 at 8:59 AM

Supplemental Information

Authorized By: 3717.04, 3717.51
Amplifies: 3717.05, 3717.13, 3717.47
Five Year Review Date: 5/16/2029
Prior Effective Dates: 3/1/2010

Rule 3701-21-02.4 | Food service operation inspection frequency.

• Effective: September 1, 2024
• Promulgated Under: 119.03

(A) Except as specified in paragraph (B) of this rule, a licensor will inspect food service operations at least every fifteen months as follows:

(1) Risk level I: at least one standard inspection each licensing period.

(2) Risk level II: at least one standard inspection each licensing period.

(3) Risk level III: at least two standard inspections each licensing period.

(4) Risk level IV: at least two standard inspections and two critical control point inspections, and if applicable two variance reviews each licensing period. The licensor may conduct critical control point inspections on the same visits as standard inspections and when applicable verify the terms of any variance that may have been issued.

(5) Mobile food service operations: at least one standard inspection each licensing period;

(6) Temporary food service operation: at least one inspection during the period of operation; and

(7) New food service operations: 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, and one critical control point inspection and one variance review for an operation classified as risk level III or IV.

(B) The licensor will inspect at least fifty per cent of an operator's vending machine locations each licensing period, with no more than twenty-four months between inspections for all licensed vending machine locations.

(C) For purposes of this rule, "licensing period" means the first day of March to the last day of February of the next succeeding year.

Last updated September 3, 2024 at 8:59 AM

Supplemental Information

Authorized By: 3717.04, 3717.51
Amplifies: 3717.04, 3717.47
Five Year Review Date: 5/16/2029
Prior Effective Dates: 12/21/2001 (Emer.), 12/1/2004

Rule 3701-21-02.5 | Standards and procedures for conducting investigations of complaints pertaining to food service operations.

• Effective: September 1, 2024
• Promulgated Under: 119.03

(A) The licensor will accept for investigation complaints regarding food service operations. Complaints will be investigated in accordance with a written policy developed by the licensor. The policy is to 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 food service operation; and

(b) A statement of facts about the complaint including the date and time of any alleged occurrence.

(2) A time frame for conducting investigations of complaints according to the potential risk to public health; and

(3) Criteria for declining to investigate a complaint.

(B) The licensor will:

(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 food service operation's file or electronic 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 September 3, 2024 at 8:59 AM

Supplemental Information

Authorized By: 3717.51
Amplifies: 3717.47, 3717.51
Five Year Review Date: 5/16/2029
Prior Effective Dates: 3/1/2001

Rule 3701-21-02.6 | Procedures for resolving disputes between licensors and license holders.

• Effective: September 1, 2024
• Promulgated Under: 119.03

A license holder may request a meeting with Ohio department of health on a licensor's proposed action regarding the food service operation, if the license holder believes that the action is in conflict with this chapter or any provision of Chapter 3717. of the Revised Code applicable to food service operations. The license holder will submit a written request to Ohio department of health no later than five days after receipt of the notice of proposed action from the licensor. After review of the written request, Ohio department of health may take whatever steps the Ohio department of health believes appropriate to assist in the resolution of the dispute. A request for a meeting with the Ohio department of health does not affect the right of any party to seek any other remedy available by law.

Last updated September 3, 2024 at 8:59 AM

Supplemental Information

Authorized By: 3717.52
Amplifies: 3717.49, 3717.50, 3717.52
Five Year Review Date: 5/16/2029
Prior Effective Dates: 3/1/2010

Rule 3701-21-02.7 | Procedures for providing enforcement support.

• Effective: September 1, 2024
• Promulgated Under: 119.03

Upon request, the director of health is available to provide enforcement support to local boards of health to assist in the prosecution of any person for any violation of this chapter or the provisions of Chapter 3717. of the Revised Code applicable to food service operations.

(A) For the purpose of this rule "enforcement support" means the provision of any of the following by the Ohio department of health as the director deems appropriate:

(1) Assistance to the licensor to address an immediate danger to public health;

(2) Expert testimony;

(3) Review and comment on enforcement documentation concerning immediate danger to public health;

(4) Assistance in the prosecution of a person who is not in compliance with this chapter or the provisions of Chapter 3717. of the Revised Code applicable to food service operations, provided the legal representative of the licensor requests the assistance, in writing, and has the consent of the board of health or the authority having the duties of a board of health; or

(5) Other assistance deemed appropriate by the director.

(B) To request enforcement support a board of health or the authority having the duties of a board of health will request assistance in writing to the director of health. The director of health will provide all feasible enforcement support as soon as possible.

Last updated September 3, 2024 at 9:00 AM

Supplemental Information

Authorized By: 3717.52
Amplifies: 3717.47, 3717.49, 3717.52
Five Year Review Date: 5/16/2029
Prior Effective Dates: 3/1/2001

Rule 3701-21-03 | Facility layout and equipment specifications.

• Effective: September 1, 2024
• Promulgated Under: 119.03

No person, association, organization, corporation, or government operation will construct, install, provide, equip, or extensively alter a food service operation until facility layout and equipment specifications have been submitted to and approved in writing by the licensor. When facility layout and equipment specifications are submitted to the licensor, they will be acted upon within thirty days after date of receipt. The licensor will use the facility layout and equipment specification criteria set forth in the rules adopted pursuant to section 3717.05 of the Revised Code to approve or disapprove facility layout and equipment specifications.

Last updated September 3, 2024 at 9:00 AM

Supplemental Information

Authorized By: 3717.51
Amplifies: 3717.05, 3717.43, 3717.51
Five Year Review Date: 5/16/2029

Rule 3701-21-22 | Food choking.

• Effective: September 1, 2024
• Promulgated Under: 119.03

(A) The director of health will provide standards detailing first aid techniques designed and intended for use by a person without medical training in removing food which has become lodged in the throat of a choking victim.

(B) The food service operation will ensure that the standards are readily accessible to the public and the employees of the food service operation.

Last updated September 3, 2024 at 9:00 AM

Supplemental Information

Authorized By: 3717.51
Amplifies: 3717.51
Five Year Review Date: 5/16/2029
Prior Effective Dates: 3/1/2001

Rule 3701-21-24 | State survey procedures for program evaluation.

• Effective: March 1, 2010
• Promulgated Under: 119.03

(A) The director of health shall survey at least once every three years each food service operation program of a licensor pursuant to section 3717.11 of the Revised Code. The licensor shall provide the director of health with all requested information to complete the survey.

(B) The director of health shall provide the survey methodology, which shall include:

(1) A review of the administrative aspects of the food service operation program including application and licensing, certification, cost analysis and fee adoption, facility layout and equipment specification review, inspections and reports, and enforcement;

(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 food service operation program.

(C) The director of health shall survey the food service operation 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 and Chapters 3701-21 and 3717-1 of the Administrative Code. After the survey is complete, the director of health 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 of health shall provide:

(1) A set time frame for correcting the deficiencies;

(2) Procedures for program disapproval that the department of health 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 of health to discuss the deficiencies.

(D) The department of health shall reevaluate a licensor's provisional food service operation program in the established time frame to determine if the program is in compliance. If in compliance, the director of health shall classify the licensor as approved. If the deficiencies have not been corrected, the director of health 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 of health's proposed determination if a written request is received by the director of health no later than fifteen days after the date of mailing the proposed determination. The informal hearing shall be conducted before the director of health or the director of health's authorized representative no later than thirty days after the director of health received the request for hearing. At the hearing, a representative of the licensor may present information orally and in writing. The director of health shall issue a written decision no later than thirty days after the conclusion of the informal hearing.

(F) The director of health 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 of health 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 of health determines that the licensor is qualified to administer and enforce Chapter 3717. of the Revised Code and Chapters 3701-21 and 3717-1 of the Administrative Code, the director of health shall classify the licensor as approved. If the director of health determines that the licensor is not qualified, the director of health may propose to revoke the approval in accordance with paragraph (D) of this rule.

Last updated October 22, 2024 at 10:29 AM

Supplemental Information

Authorized By: 3717.52
Amplifies: 3717.11, 3717.52
Five Year Review Date: 1/1/2030
Prior Effective Dates: 7/11/1996, 3/1/2001

Rule 3701-21-25 | Certification in food protection.

• Effective: September 1, 2024
• Promulgated Under: 119.03

(A) In accordance with section 3717.09 of the Revised Code, the director of health will approve the following categories of food certification courses:

(1) Person in charge certification covers the principles of food safety and the requirements of paragraph (B) of rule 3717-1-02.4 of the Administrative Code.

(2) Manager certification in food protection is a comprehensive food safety training that provides managers with in-depth knowledge of proper food safety practices for use in their facilities. A manager certification in food protection course approved by the director of health prior to April 1, 2019 will retain its approval until a new or amended course is submitted to the director of health no later than nine months after the effective date of this rule and approved or disapproved by the director of health no later than twelve months after the effective date of this rule. If a new or amended course is not submitted and approved within twelve months of the effective date of this rule, the course will no longer be approved.

(B) Any person desiring to apply to the director of health for approval to conduct a food certification course is obligated to complete an application prescribed by the director and submit the completed application to the director. An application to conduct a person in charge certification course or manager certification in food protection course will contain at least the following criteria:

(1) The applicant's name, address, email address and telephone number;

(2) Name of course to be conducted;

(3) Course agenda that identifies the core content as specified in appendix A of this rule for a person in charge certification course and as specified in appendix B of this rule for a manager certification in food protection course;

(4) A description of any methods of training to be used such as classroom instruction, guest speakers, interactive computer programming, or video;

(5) The names of all course instructors and verification that the instructors possess the following qualifications:

(a) For person in charge certification:

(i) The instructor is a registered environmental health specialist working in food safety; or

(ii) The instructor possesses a valid manager certification in food protection in accordance with this rule.

(b) For manager certification in food protection:

(i) The instructor is a registered environmental health specialist working in food safety; or

(ii) The instructor possesses a valid manager certification in food protection in accordance with this rule; and

(iii) Documentation that confirms the instructors possess approval from the course developer to instruct the course.

(6) The names of all examination proctors and documentation that the proctors possess approval from the examination developer to proctor the examination;

(7) For a manager certification in food protection course, the name of the examination to be administered. The examination will comply with the criteria set by the conference for food protection standards (April 2016) for food safety certification examination;

(8) An example of the certificate issued to individuals who attend a person in charge certification course, which will contain the following:

(a) Name of student;

(b) Statement that student completed "Ohio Person-in-Charge" course;

(c) Date of course completion;

(d) Name of training provider; and

(e) Course provider approval number assigned by the director of health.

(C) Person in charge certification and manager certification in food protection courses.

(1) An application for approval of a person in charge certification or manager certification in food protection course will be completed on a form prescribed by the director and will contain at least the following information:

(a) The applicant's name, address, email address and telephone number; and

(b) A copy of all course materials, such as student manuals, written or verbal exercises, access to interactive computer program, videos, handouts or other materials mandated by the director of health;

(2) Amendments to a person in charge or manager certification in food protection course approved by the director of health will be submitted to and approved by the director of health prior to implementation.

(D) Person in charge certification and manager certification in food protection course curriculums.

(1) The core content of a person in charge certification course will address the areas of knowledge and the topics described in appendix A of this rule and contain a verbal or written exercise, without the written exercise containing a passing score.

(2) The core content of a manager certification in food protection course will address the areas of knowledge and the topics described in appendix B of this rule.

(3) A food certification course administered through interactive computer programming will affirm that the course does not enable an individual to fast forward or skip through course content.

(E) Individuals that submit with their applications proof that they are a service member or veteran, or the spouse or surviving spouse of a service member or veteran will receive priority processing.

(1) The acceptable proof of service member/veteran status documents are:

(a) Department of defense identification card (active, retired, temporary disability retirement list (TDRL));

(b) DD214 military discharge certificate indicating disposition of discharge;

(c) Report of separation from the national archives national personnel records center in St. Louis, Missouri; or

(d) Veterans identification card from the department of veterans affairs.

(2) All acceptable proof documents, except veterans identification card, are to show the veteran status as honorable, general, general under honorable conditions, or discharged or released under conditions other than dishonorable.

(F) An approved provider of a person in charge certification course will:

(1) Prior to implementation, submit to the director any changes such as course materials, course agenda, instructors, certificate of completion, or provider contact information;

(2) Provide adequate facilities, equipment and supplies necessary to administer the approved course; and

(3) Provide a certificate of completion to individuals who complete the course.

(G) An approved provider of a manager certification in food protection course will:

(1) Prior to implementation, submit to the director any changes such as course materials, course agenda, instructors, proctors, examination, or provider contact information;

(2) Provide adequate facilities, equipment and supplies necessary to administer the approved course;

(3) Ensure that, prior to administering the examination:

(a) Instructors affirm that students attended the entire course; and

(b) Proctors mandate students to provide documentation of completion of a manager course approved by the director of health. Providers will maintain the documentation until the provider has been audited by the director of health.

(4) Within thirty days of administering the examination, send to the director of health a copy of the examination score report that includes date of examination, each individual's name, passing grade, name of provider, and name of instructor or proctor; and

(5) Distribute the Ohio certification to individuals who successfully complete a certification course and examination within ten business days of receiving the certifications from the director of health.

(H) The director may audit any food certification course or provider to determine compliance with the most current requirements in Chapter 3717-1 of the Administrative Code and this rule.

(I) The director may disapprove a food certification course or provider if the course or provider fails to meet the requirements of this rule. An applicant, course, or course provider may request that the director reconsider the decision and may submit additional materials to the director in support of their request, provided that the director receives the request for reconsideration and any additional materials within thirty days of the date of the director's notice of disapproval. The director will reconsider the disapproval and issue a final decision within thirty days of receiving the request for reconsideration.

(J) An individual desiring manager certification in food protection is obligated to successfully complete a manager certification in food protection course and examination that meet the requirements of this rule. If the course and examination were administered by a course provider not approved by the director of health, the individual may apply for certification in food protection by submitting an application to the director of health on a form prescribed by the director along with the following:

(1) Documentation that the individual has successfully completed a manager certification in food protection course in accordance with this rule; and

(2) A certificate that confirms the individual has successfully completed a course examination that complies with paragraph (B)(7) of this rule within one year of completion of an approved manager certification in food protection course.

(K) Person in charge certification:

(1) The licensor will mandate person in charge certification for at least one person in charge per shift in risk level I, II, III, and IV food service operations and retail food establishments initially licensed after March 1, 2010.

(2) The licensor will mandate person in charge certification for all persons in charge in food service operations and retail food establishments initially licensed prior to March 1, 2010 that have been implicated in a foodborne disease outbreak or the licensor has documented a failure to maintain sanitary conditions as per sections 3717.29 and 3717.49 of the Revised Code.

(3) A person in charge of a food service operation or a retail food establishment not subject to paragraph (K)(2) of this rule that provides documentation to the licensor that the person in charge has obtained manager certification in food protection issued by the director of health is not obligated to obtain person in charge certification.

(4) The licensor will mandate person in charge certification for at least one person in charge per license holder at each individual event in high risk mobile food service operations and high risk mobile retail food establishments initially licensed on or after the effective date of this rule.

(5) The licensor will mandate person in charge certification for all persons in charge in high risk mobile food service operations and high risk mobile retail food establishments initially licensed prior to the effective date of this rule that have been implicated in a foodborne disease outbreak or the licensor has documented a failure to maintain sanitary conditions as per sections 3717.29 and 3717.49 of the Revised Code.

(L) A licensor that is an approved course provider in accordance with this rule may charge a fee as specified in division (B)(3) of section 3717.25 of the Revised Code for retail food establishments and division (B)(3) of section 3717.45 of the Revised Code for food service operations.

View AppendixView Appendix

Last updated September 3, 2024 at 9:00 AM

Supplemental Information

Authorized By: 3717.51
Amplifies: 3717.09
Five Year Review Date: 5/16/2029
Prior Effective Dates: 10/22/2001, 3/1/2010, 4/1/2019

Rule 3701-21-26 | Appeal procedures.

• Effective: September 1, 2024
• Promulgated Under: 119.03

(A) This rule prescribes procedures for appealing the proposed denial, suspension or revocation of a food service operation license and appealing the suspension of a license for a violation presenting an immediate danger to the public health. An appeal of a proposed denial, suspension or revocation of an endorsement on a food service operation license and appeal of the suspension of an endorsement on a license for a violation presenting an immediate danger to the public health will be conducted in the same manner.

(B) In the case of a proposal to deny, suspend, or revoke a food service operation license, the licensor will provide the license holder with written notice of the proposed action and the cause for the action. The notice is to describe the procedure for appealing the proposed denial, suspension, or revocation.

(1) The licensor will 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 is to send the notice by regular mail to the food service operation 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 will submit a written request that the licensor receives within fifteen days.

(3) The licensor will schedule a hearing before the licensor or a hearing officer designated by the licensor. If the licensor provides a hearing officer, he or she will be licensed to practice law in Ohio and cannot have participated in any manner in the decision to take the action against the license holder.

(4) The licensor will 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 will be provided an opportunity to present its case orally or in writing and to confront and cross-examine witnesses. The license holder may be represented by legal 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, he or she will prepare a written recommendation as to the validity of the licensor's action, which will rest solely on the evidence presented at the hearing and the statutory and regulatory provisions governing the licensor's action. The hearing officer will describe the basis for his or her recommendation, but need not prepare a full opinion or formal findings of fact and conclusions of law. The hearing officer will 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 will enter an order in the record of its 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 an immediate danger to the public health, the licensor will 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 will specify the procedure for appealing the suspension and list the address to which a hearing request is to 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, it will be heard not later than two business days after the request is received by the licensor. At the hearing, the license holder may have the opportunity to present its 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 will determine whether the immediate danger to the public health continues to exist.

(D) Any determination made or order entered by the licensor pursuant to this rule will 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 of health is acting as the licensor pursuant to section 3717.11 of the Revised Code, by decision of the director.

(E) 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 it is recorded in the licensor's record of its proceedings.

Last updated September 3, 2024 at 9:01 AM

Supplemental Information

Authorized By: 3717.52
Amplifies: 3717.47, 3717.49
Five Year Review Date: 5/16/2029
Prior Effective Dates: 3/1/2010

Rule 3701-21-27 | Embargo of food.

• Effective: September 1, 2024
• Promulgated Under: 119.03

Food may be embargoed in a food service operation according to rule 901:3-4-15 of the Administrative Code.

Last updated September 3, 2024 at 9:01 AM

Supplemental Information

Authorized By: 3717.51
Amplifies: 3715.05, 3715.27, 3715.47, 3717.52
Five Year Review Date: 5/16/2029

Rule 3701-21-28 | Articles-Requirement to Cease Use.

• Effective: September 1, 2024
• Promulgated Under: 119.03

Articles may be removed from use in a food service operation as specified in rule 901:3-4-12 of the Administrative Code.

Last updated September 3, 2024 at 9:01 AM

Supplemental Information

Authorized By: 3717.51
Amplifies: 3717.47, 3717.51
Five Year Review Date: 5/16/2029