Introduction

    Definitions

    Food Protection Program Inspection And Enforcement Procedures

The following enforcement procedures for administration and enforcement of Act 368, Public Acts of 1978, Part 129, as amended, are intended to comply with Sections 2441 and 2442 of Michigan's Public Health Code.

Continuous Violation: A specific violation that is documented, persists, and is not corrected within an allowed or agreed upon time period.

Minimum Standards

1. No Imminent or Substantial Hazards; and

2. Class 1 critical items are not present, or are corrected immediately, and any Class 1 violation found is not a chronic violation; and

3. Class 2 critical items are not present or are corrected according to correction schedules, and any Class 2 violation found is not noted as a chronic violation; and,

4. Unsanitary conditions are not substantial (suggested limit of 10 non-critical violative items or 25 individual occurrences of any combination of non-critical violative items), unsanitary conditions are corrected according to agreed upon schedules, and unsanitary conditions found are not noted as chronic.

Critical Item Violations [R325.25901]:

Imminent or Substantial Hazard: A condition which may include, but is not limited to, loss of power to the establishment, loss of the water supply, backup of sewage wastes into the building, severe structural damage, an ongoing foodborne illness caused by the establishment, a severe vermin infestation that threatens the integrity of the establishment's food supply, or any condition which in the opinion of the health officer is an immediate threat to the public's health.

Unsanitary Conditions: Conditions in violation of the Part 129 rules that are not classed as "critical item violations", but which are violations at the time of an inspection.

Non-Compliance at the time of an Inspection; any or all of the following:

1. An Imminent or Substantial Hazard is documented [R325.25907],

2. Class 1 critical item(s) present and not corrected at the time of inspection [R325.25906],

3. Class 2 critical item(s) present, not corrected according to stated correction schedule [R325.25906],

4. Class 1 or 2 critical items present and determined to be chronic or continuous violations [R325.25906],

5. Unsanitary conditions are substantial, or present and not corrected according to agreed upon schedule, or noted as chronic violations [R325.25906].

Office Conference: A meeting between an establishment owner, or a designated representative, and health department representatives for the purpose of explaining the severity of observed violations, the need for correction, and the consequences of allowing the violations to continue. The purpose of such meetings is to clarify expectations for food protection and sanitation within an establishment. Office Conferences are preliminary to Informal Hearings.

1. Administrative Actions for operations in violation of Act 368, Part 129:

1. Operating a food service establishment without a license: Go to Step 6. [Section 12904, Act 368, Part 129]

2. Interfering with an agent of the Health Officer in the performance of his/her duties: Go to Step 3. [R325.25904; R325.25806]

3. Construction or remodeling of a new or existing food service establishment without an approved plan, or not constructing according to the approved plan: Go to Step 8. [R325.25701 - R325.25708; Part 7; Section 12911 of Act 368]

4. Operating a temporary food service establishment without a license: Go to Step 6.[R325.256702; Section 12904 of Act 368]

5. Unapproved, adulterated or contaminated food source: Order to hold, test or destroy a food product: Go to Step 9. [R325.25908]

6. License limitations, limiting the extent of food preparation or the menu items an establishment may prepare and serve: Go to Step 7. [R325.25804]. An establishment owner is entitled to an informal hearing if license limitations are imposed.

Implement the following enforcement procedures, according to actions required in Section II. Whenever an establishment is in compliance with mandated corrections and compliance schedules, and is not a chronic violator of sanitation standards, the agency will perform routine inspections with follow-up or recheck inspections as required to verify routine correction of violations.

An informal hearing is held to determine correction schedules and license limitations necessary to create compliance with Michigan's food service regulations, and to protect the public's health. An informal hearing may be held for any or all of the following reasons:

1. Failure to comply with an order of the health officer.

2. Interfering with an agent of the health officer in the performance of his/her official duties.

3. Failure to correct Class 1 or Class 2 critical item violations as agreed upon in an Informal Conference.

4. Class 1 or Class 2 critical items are chronic or repeated, or, continuous violations.

5. A written request from a licensee.

The requirement for an informal hearing shall be noted on an inspection report if a representative of the [Agency Name] observes practices or conditions in violation of an existing compliance agreement. The licensee shall be notified of the time, place and date for the informal hearing in a written notice. The notice shall state the reasons for the hearing; shall advise the licensee of his/her right to representation at the hearing; and shall allow the licensee to request a change of date or time up to 48 hours prior to the original hearing date and time.

At the hearing, a hearing officer will hear testimony from the [Agency Name] representative and the licensee or the licensee's representative. If the alleged violations are confirmed, the hearing officer shall mandate corrections and a compliance schedule. The facility shall remain in compliance with mandated corrections for the length of the compliance schedule. If the facility is not in compliance with mandated corrections during the length of the compliance schedule, the department may order a formal hearing for the purpose of suspending or revoking the establishment's food service license.

If the hearing is requested by the licensee, the Hearing Officer may order an inspection or other options to determine the validity of the licensee's complaint.

Either upon request to the Health Officer by, or on behalf of, any licensee or the licensee's representative whose license has been revoked, or if a food service establishment has failed to comply with the requirements set forth by an Informal Hearing, a Formal Hearing shall be afforded as soon as possible, within a period of time not to exceed ten (10) working days, provided that this shall in no way affect any order to cease food service operations or revocation of license in advance of said hearing. The hearing shall be conducted during the working hours of the [Agency Name] at a time and place designated by the Health Officer. The Hearing Board shall consist of at least two members, described as follows [Describe a Board composed of at least two members, one representing the local elected legislative authority and one representing the regulatory authority, Local Health Department for example]. If one or more of the alleged violations have been confirmed, the Hearing Board shall determine whether and under what stipulations the affected license shall be reinstated or shall be further suspended, or revoked, and shall notify the licensee in writing of the determinations.

The decision of the Hearing Board following the hearing shall be final unless appealed to a court of competent jurisdiction. The licensee or licensee's representative may attend the hearing with witnesses, and may be represented by legal counsel. In the event the licensee or licensee's representative fails to attend said hearing, the licensee shall be deemed to have been afforded an opportunity to comply with said regulations.

Subject to the licensee's rights of an opportunity for a hearing before the Health Officer, any license issued pursuant to the provisions of Act 368, Public Act of 1978, Part 129, may be suspended or revoked by the Health Officer for failure of the licensee to comply with the findings of the Hearing Board.

FORMAL HEARING PROCEDURE:

1. NOTIFICATION OF FORMAL HEARING: Notification to licensee of a Formal Hearing shall be sent by certified/return receipt requested mail or hand-carried to licensee/operator of facility and shall include the following.

1. Dates of previous routine and follow-up inspections.

2. List of deficiencies, item by item or statement of involved issues.

3. A statement that deficiencies are in violation of provisions adopted pursuant to Act 368, P.A. of 1978, Section 12909 (3), and rules promulgated pursuant thereto.

4. Time, date, and place of Formal Hearing.

5.  Notice that the licensee may have legal counsel present.

6. Request for at least 48 hours notice if rescheduling is necessary.

7. Notice that a failure to appear or reschedule may result in revocation of license to operate a food service establishment.

 

2. FORMAL HEARING STATUTORY PROCEDURES:

1. Hearings:

1. Notices to licensees shall include date, time, and place of the hearing, as well as the address and telephone number of the [Agency].

2. A hearing may be adjourned if the licensee sends a written notification of inability to attend the hearing no less than 48 hours before the scheduled hearing date. If the licensee fails to appear without giving prior notice, the hearing may proceed and a decision may be rendered in the licensee's absence.

3. The [Agency] shall prepare an official record of all hearings, which shall include:

1. Notices, inspection reports, correspondence and intermediate rulings.

2. Questions and offers of proof, objections and rulings thereon.

3. Evidence presented.

4. Proposed findings.

5. Any decisions, opinions, orders, or findings of fact by the officer presiding at the hearing and by the [Agency].

2. Legal Representation & Witnesses:

1. Licensee and [Agency] may have legal representation and witnesses in their behalf.

2. The Hearing Officer may require attendance and the giving of testimony by witnesses and the production of books, papers and other documentary evidence.

3. A party may cross-examine a witness, including the author of a document prepared by, on behalf of, or for use by the [Agency] and offered in evidence. A party may submit rebuttal evidence.

4. The [Agency] shall make all records in a case, including statements by [Agency] witnesses, available to opposing parties for use on cross-examination.

3. Evidence:

1. Parties shall be given an opportunity to present oral and written arguments on issues of law, policy and facts.

2. All evidence to be presented at a hearing shall be entered only at the time of the hearing. No evidence will be added or deleted after the hearing.

3. Irrelevant, immaterial or repetitious evidence may be excluded. Objections to offers of evidence may be made and shall be noted in the record. Hearsay evidence and testimony may be allowed, but the weight will be adjusted accordingly.

4. A deposition may be used in lieu of other evidence, when taken in accordance with the Michigan Court Rules.

5. Documentary evidence may be received in the form of a copy or excerpt. All documentary evidence incorporated by reference must be made available for examination by licensee or his/her representative or legal counsel.

4. Decisions:

1. Decision of the Hearing Board shall be rendered within 30 days of the hearing and shall be final concerning the administrative hearing process.

2. Final decision in a case must be read into the record, or put into written form and copies sent to all concerned parties and attorneys of record. A final decision or order shall include findings of fact and conclusions of law.

3. An appeal may be sought through Circuit Court not later than 60 days after the date of delivery of or mailing notice of the final decision.

 

3. FORMAL HEARING, SEQUENCE OF REPRESENTATIONS: The sequence of presentation at hearing shall be as follows:

1. Call to order.

2. Date, time and reason for hearing stated.

3. Introductions. All names, positions and titles, representatives and reasons for attendance of individuals present at the hearing shall be stated for the record by the Hearing Officer. At this time, the Hearing Officer shall question Board Members as to any conflict of interest in the case before the Board.

4. Hearing format:

1. Proceedings are to be recorded and kept available as a matter of public record.

2. [Agency] staff shall present their case, allowing opportunities for cross-examination by the licensee or the licensee's representative.

3. The licensee or the licensee's representative shall present their case, allowing an opportunity for cross-examination by the [Agency] staff, or the [Agency] representative.

4. Both the [Agency] and the licensee shall have an opportunity to clarify their respective positions.

5. Hearing Board members may ask questions at any time.

6. The Board may deliberate on the testimony and evidence for no more than 30 days. The Board must render a decision within 30 days.

7.  Final decisions of the Board shall be announced with all parties present in a meeting open to the public. A decision may be made for the [Agency] or the licensee on each allegation.

• Failure to Properly Refrigerate Foods.

• Incorporating Raw (Contaminated) Ingredients Into Foods that Receive No/Little Cooking.

• Failure to Thoroughly Heat Process or Cook Foods.

• Infected Employees Practicing Poor Personal Hygiene.

• Failure to Clean and Disinfect Kitchen or Processing Plant Equipment.

• Preparing Foods A Day or More Before Serving.

• Allowing Foods to Remain at Warm (Bacterial Incubating) Temperature.

• Failure to Reheat Cooked Foods to Temperatures that Kill Vegetative Bacteria.

• Cross Contamination.