Chapter 11.70
FOOD SERVICE SAFETY AND INSPECTION CODE
Sections:
11.70.040 FDA Food Code adoption.
11.70.050 Amendments and appendices.
11.70.080 Health Official or designee.
11.70.090 Food establishment certification.
11.70.100 Plan review application.
11.70.110 Certified food protection manager.
11.70.120 Tribal business license required.
11.70.130 Temporary food establishments exempt.
11.70.140 Annual inspection charges.
11.70.150 Enforcement – Generally.
11.70.170 Corrective measures.
11.70.010 Title.
This chapter shall be known as the Chehalis Tribal Food Service Safety and Inspection Code. [Res. 2023-36.]
11.70.020 Findings.
The Business Committee, after carefully considering the need for establishing food service safety standards in regard to Reservation activities, finds the establishment of food service safety and inspection standards on the Reservation are necessary to protect the health and well-being of Chehalis Tribal members, residents, visitors, and employees. [Res. 2023-36.]
11.70.030 Jurisdiction.
A. This chapter shall apply to all food establishments operating within the exterior boundaries of the Reservation; provided, that for fee-land food establishments, the Tribe may authorize State food agencies to provide necessary inspections, along with the Tribal Health Official, at the Tribe’s discretion.
B. Those not directly subject to this chapter are encouraged to comply with provisions herein and the Tribe reserves the right to take jurisdiction to intervene should a food-related event potentially compromise public health, safety, or welfare. [Res. 2023-36.]
11.70.040 FDA Food Code adoption.
A. The 2017 Food Code published by the United States Health and Human Services/Food and Drug Administration (FDA Food Code) Chapters 1 through 7 and Sections 8-201.13.1 and 8-201.14 of Chapter 8 is hereby adopted as Tribal law and made a part of this chapter for the purpose of regulating the design, construction, management and operations of food establishments in a manner that provides basic protections for human health; provided, that where a provision of this chapter differs from the FDA Food Code or from Business Committee resolution, this chapter and/or any Business Committee resolution shall be controlling.
B. The FDA Food Code, the provisions of this chapter, and the provisions of any appendices to this chapter, which may now or hereafter be adopted by Business Committee resolution, shall be applied to all food establishments within the jurisdiction of the Confederated Tribes of the Chehalis Reservation. A copy of the FDA Food Code, to include any appendices, shall be on file and available for inspection at the Planning Department.
C. Terms in this chapter are defined as set forth in the FDA Food Code, except as otherwise defined below. [Res. 2023-36.]
11.70.050 Amendments and appendices.
A. Any revisions of the 2017 FDA Food Code by the Health and Human Service Administration/Food and Drug Administration shall be automatically incorporated as Tribal law, absent resolution of the Business Committee to the contrary. The Planning Director shall provide updates to the Business Committee on the publication of any revised FDA Food Code as to any sections that may be contrary to the Tribe’s interests.
B. The Business Committee may, from time to time, enact resolutions to provide additional guidance and rules for particular types of food establishments and/or to set forth modifications to the FDA Food Code. Such resolutions shall be incorporated into this chapter as appendices. [Res. 2023-36.]
11.70.060 Definitions.
“Adult family home” means a licensed residential home in which a person or persons provide personal care, special care, room, and board to more than one but not more than six adults who are not related by blood or marriage to the person or persons providing the services.
“Commissary” also known as “servicing area” shall be defined as an approved food establishment to which a mobile food establishment or transportation vehicle returns regularly for such things as vehicle and equipment cleaning, discharge of liquid or solid wastes, refilling water tanks and ice bins, and storing, preparing, portioning, or packaging food.
“Family day care provider” and “family home provider” mean a child care provider who regularly provides early childhood education and early learning services for not more than 12 children at any given time in the provider’s home in the family living quarters.
“Food establishment” shall be defined as in the FDA Food Code. In addition to what is not considered within the FDA Food Code to be a food establishment, the following are also not food establishments:
1. An establishment that offers only dry non-time/temperature control for safety food, nonready-to-eat foods with no additional processing (such as dry beans, dry grains, in-shell nuts, coffee beans, tea leaves, or herbs for tea);
2. An establishment that offers only prepackaged frozen confections produced in a licensed food establishment or food processing plant;
3. An establishment that offers only non-time/temperature control for safety food, hot beverages (such as coffee, tea, or pasteurized apple cider) served directly into sanitary single-service articles;
4. A hotel, motel, or other similar business that maintains an ice dispensing machine for self-service use by guests and the ice is not used by a food establishment;
5. A private home or other location used for a private gathering limited to members and guests of members of a family, organization, or club, where the event is not open or advertised to the general public, and where food is provided without compensation;
6. A donor kitchen, such as a foodbank or other location used to handle, store, or prepare food for donation to needy persons through a donated food distributing organization and which is not a residential kitchen in a private home;
7. A location used for a potluck, which is an event where people are gathered to share food, people attending the event are expected to bring food to share; there is no compensation for people bringing food to the event; there is no charge for any food or beverage provided at the event; and the event is not conducted for commercial purposes;
8. A location operating 30 or fewer days per calendar year, used by a person under the age of 18 for the sale of nonalcoholic beverages, such as lemonade, using non-time/temperature control for safety food with no direct hand contact and served directly into single-service articles. This does not include a location used for special events such as entertainment, amusement, recreation, educational, or marketing events;
9. A kitchen in a private home operated as a family day care provider or an adult family home used only to prepare food for residents and other people for whom the operation is licensed to provide care.
“Health Inspector” shall mean: an individual under the Tribe’s employment or contract authorized to assist the Health Official with conducting food establishment inspections; food safety; technical assistance; and interpreting and enforcing this code.
“Health Official” shall mean: the Business Committee, or the Planning Director or designee when acting as the authorized representative of the Business Committee, in its capacity as the Tribe’s enforcement body, and as the body having jurisdiction over food establishments located on and/or operating on Tribally owned land.
“Mobile food unit” shall mean: a readily movable food establishment such as a food truck, food cart, or food stand.
“Temporary food establishment” shall mean: a food establishment, to include a mobile food unit, which shall be in operation for no more than seven consecutive days, for a total of no more than 30 days in a calendar year. [Res. 2023-36.]
11.70.070 Health Inspector.
The Health Official or designee shall be responsible for approving and hiring a Health Inspector. The Health Inspector shall be any professionally qualified person or entity under contract or employment of the Tribe which monitors or provides food service safety and inspection services or guidance, and which is approved for doing so by the Health Official or designee. [Res. 2023-36.]
11.70.080 Health Official or designee.
The Chehalis Tribe may delegate the power to enforce this chapter to the Tribe’s Health Official or designee, or to another employee of the Planning Department. The Health Official or other person designated to enforce this chapter may receive technical assistance and support from the Health Inspector. The Health Inspector is authorized to assist the Health Official in interpreting and enforcing the FDA Food Code, and in particular is authorized to:
A. Require a plan review application by any person seeking certification of a food establishment;
B. Enter onto the premises of food establishments with or without prior notice;
C. Inspect food establishments;
D. May impose additional requirements to protect against health hazards related to food service;
E. Prepare written inspection reports, a copy of which shall be provided to the food establishment;
F. Require food establishments to provide a written reply to the Health Inspector to verify that any violations have been remedied;
G. Seek corrective action orders; and
H. Issue notices of infraction. [Res. 2023-36.]
11.70.090 Food establishment certification.
A. Each food establishment shall obtain and display a certification of food service safety and inspection compliance issued by the Health Official or designee following an inspection by the Health Inspector showing compliance with standards provided herein, including, but not limited to:
1. Compliance with the FDA Food Code and with this chapter;
2. Having on staff a certified food protection manager, as provided for in CTC 11.70.110.
3. All employees of the food establishment:
a. Shall, within 10 days of commencing employment, possess a food handlers permit issued by the Health Official or designee or an equivalent permit issued from another public agency or entity approved by the Planning Department; and
b. Shall be under the direct supervision and control of a “person in charge” as provided for under Part 2-1 of the 2017 FDA Food Code. [Res. 2023-36.]
11.70.100 Plan review application.
Prior to serving food from any food establishment subject to this chapter, the owner of the food establishment shall submit a properly prepared plan review application to the Health Official or designee, and a pre-opening inspection must be conducted. [Res. 2023-36.]
11.70.110 Certified food protection manager.
A. Each food establishment shall have on staff at least one certified food protection manager as provided in the FDA Food Code.
B. Food establishments must have at least one certified food protection manager on staff as evidenced by a valid certificate available from an accredited program. The certificate must be available upon request. If the certified food protection manager leaves employment for any reason, the food establishment must have another certified food protection manager on staff within 60 days.
C. Responsibilities of the certified food protection manager include training and implementing a program of food protection and education for each person in charge, so that each person in charge is able to successfully demonstrate knowledge of the FDA Food Code Parts 1 through 7, and of this chapter.
D. This section does not apply to certain types of food establishments deemed by the Health Official or designee to pose minimal risk of causing, or contributing to, foodborne illness based on the nature of the operation and extent of food preparation. [Res. 2023-36.]
11.70.120 Tribal business license required.
Any person who shall engage in business as a food establishment within the boundaries of the Chehalis Reservation shall, after obtaining a certification of food service safety and inspection compliance as provided in CTC 11.70.090, obtain a Tribal business license. A copy of the Tribal business license shall be posted in every food establishment. [Res. 2023-36.]
11.70.130 Temporary food establishments exempt.
A. Temporary food establishments shall be exempt from certification requirements set forth in CTC 11.70.090 and 11.70.100.
B. Notwithstanding subsection A of this section, all persons working in a temporary food establishment for more than four consecutive days and/or more than eight days in a calendar year shall possess a food handlers permit issued by the Health Official or designee or an equivalent permit issued from another public agency or entity approved by the Planning Department.
C. Any person who intends to engage in business as a temporary food establishment shall obtain a Tribal business license prior to opening said establishment for business.
D. The Health Official or designee may decline to issue a business license to a person operating a temporary food establishment if there is reasonable cause to believe that the temporary food establishment presents an imminent risk to human health.
E. The Health Inspector shall, on request of the Health Official or designee or of the Business Committee, make inspections of any temporary food establishment at any reasonable time, without prior notice to the operator of the establishment, and on the direction of the Business Committee the Health Official or designee shall shut down a temporary food establishment where there is reasonable cause to believe the temporary food establishment presents a risk to human health. [Res. 2023-36.]
11.70.140 Annual inspection charges.
The Planning Department may in its discretion, and if authorized by the Business Committee, charge an annual inspection fee and/or fees for re-inspections required as a result of inspection violations. The fee schedule shall be approved by the Business Committee and shall be made available at the Planning Department. [Res. 2023-36.]
11.70.150 Enforcement – Generally.
The Chehalis Tribal Planning Department, on direction of the Business Committee, shall be authorized to enforce this chapter, and to issue notices of civil infractions for violations of this chapter. [Res. 2023-36.]
11.70.160 Violations.
Violations of this chapter or appendices to this chapter shall be treated as civil infractions. The Business Committee shall set a schedule of fines for violations, which shall be made available at the Planning Department. [Res. 2023-36.]
11.70.170 Corrective measures.
A. Upon finding a violation of this chapter, appendices to this chapter, or of the rules and regulations adopted under this chapter, the Planning Director or designee shall notify the Business Committee, which may authorize the Planning Department to order corrective measures in accordance with this code.
B. Where the Health Inspector finds egregious or repeated violations which create risk of imminent harm to human health, the Planning Director or designee shall immediately seek authorization from the Business Committee to issue a closure order; provided, that if the Business Committee is unable to convene in a timely way, the Planning Director or designee may issue a closure order on its own, but then shall at the earliest opportunity inform the Business Committee of the action taken. A closure order shall be effective immediately and shall act as a suspension of the food establishment permit.
C. Where the Health Inspector finds violations and the food establishment after being informed of the violations fails to take corrective action on their own, the Planning Director or designee may in their discretion issue a corrective action order setting forth violation(s) of this chapter and the date by which the violation(s) must be remedied, may issue a notice of civil infraction, and/or may seek an injunction in Tribal Court pursuant to Chapter 3.25 CTC. [Res. 2023-36.]
11.70.180 Civil infraction.
A. The Planning Director or designee in their discretion shall, on approval of the Business Committee, issue a notice of civil infraction to any person who fails to comply with a corrective action order, continues to operate a food establishment in violation of a closure order, or otherwise violates this chapter, to include any appendix to this chapter.
1. In determining whether to issue a notice of infraction, or in determining the amount of any fine imposed, the Planning Director or designee, in consultation with the Health Inspector, shall take into account whether any corrective action orders have been complied with, the severity and nature of the violation(s), and the potential harm to human health resulting from the violation(s). In addition, this chapter may be enforced through administrative closure order issued by the Planning Director on authorization by the Business Committee or injunction issued by the Tribal Court in accordance with procedures set forth in Chapter 3.25 CTC.
B. Each day on which said person shall continue to fail to remedy a violation set forth in a corrective action order, continue to operate in violation of a closure order, or otherwise continue to violate any provision of this chapter shall be deemed a separate violation of this chapter, subjecting such person to civil fines or injunctions.
C. Contents of the Notice of Civil Infraction. The notice of civil infraction shall be signed under penalty of perjury by the Planning Director or designee, and shall include the following:
1. A citation to the particular provision of this chapter or of the rules and regulations adopted under this chapter that has been violated.
2. Date of the violation.
3. Description of the violation and of any attempt made to address the violation through a corrective action order, closure order, or other means.
4. The amount of the fine due, and a statement that the fine must be paid in person or by mail to the Chehalis Tribe within 30 days unless the person has properly requested a hearing in Tribal Court.
5. A statement that the person may request a hearing in Tribal Court by filing with the Tribal Court a written request for hearing within 21 days of issuance of the notice of civil infraction. The written request for a hearing must specify whether the person requests a contested hearing or a mitigation hearing.
D. Service of Notice of Civil Infraction. A copy of the notice of civil infraction shall be served on the person by giving them a copy personally, or where they cannot be located within the boundaries of the Reservation, by sending a copy by first class U.S. mail to the address provided on their Tribal business license application.
E. Process for Hearing.
1. Where a person has timely filed a request for a contested hearing or for a mitigation hearing, the Clerk of the Tribal Court shall set a hearing to occur within 30 days and shall provide at least 14 days’ notice of the date and time of the hearing to the person and to the Planning Department.
2. The Chehalis Tribal Rules of Civil Procedure shall apply to the conduct of all hearings provided for in this chapter, except as otherwise provided herein.
3. The hearing shall be without a jury.
4. The Court may consider notice of the violation and/or any other written report of the Planning Director or designee or the Health Inspector that is signed under penalty of perjury in lieu of that person’s personal appearance at the hearing, and/or other reliable hearsay.
5. At a contested hearing the burden of proof shall be on the Tribe to establish commission of the violation by a preponderance of the evidence. If the Court finds that the violation did not occur, the notice of violation shall be dismissed. If the Court finds the violation did occur, the Court shall order the person to pay the fine and, in its discretion, and on the recommendation of the Planning Department may order the person to pay court costs.
6. At a mitigation hearing the person shall be permitted to present evidence and arguments only as to why the full amount of the fine should not be imposed. The Court in its discretion may impose the original fine or a lesser fine, or may suspend all or part of the fine on condition that the person have no further violations of this chapter for a period of time not less than one year. [Res. 2023-36.]
11.70.190 Sovereign immunity.
A. Nothing in this chapter shall be construed as waiving the sovereign immunity of the Tribe or its enterprises, agents, employees or officials.
B. No manager, officer or employee of the Tribe is authorized, and they shall not attempt, to waive the immunity of the Tribe. [Res. 2023-36.]
11.70.200 Severability.
If any portion of this chapter, provisions of other rules and regulations adopted by this chapter, or its application to any person or circumstance is held invalid, the remainder of this chapter or its application to other persons or circumstances is not affected. [Res. 2023-36.]
11.70.210 Effective date.
The effective date of the resolution codified in this chapter shall be the date of its passage by the Business Committee. [Res. 2023-36.]