TITLE 9. HEALTH SAFETY AND SANITATION

CHAPTER 1 - FOOD SERVICE AND RETAIL

Section 9-1-1. Title.

This article shall be known and may be cited as the “District Food Service and Retail Ordinance” and may be abbreviated as the “District FSRO”.

Section 9-1-2. Purpose.

The intent of the District Food Service and Retail Ordinance is to provide food establishments with clear and concise food safety regulations, and to provide the administrative enforcement required to safeguard public health and ensure that food is safe, unadulterated, and honestly presented for consumption.

Section 9-1-3. Definitions.

For the purpose of this ordinance, the following definitions shall apply unless the context clearly indicates or requires a different meaning

19 Pueblos District means all lands subject to the jurisdiction of the Governing Council pursuant to the 19 Pueblos District Charter. Also referred to as “District.”
Applicant means a Person applying for a District business registration pursuant to the District’s Business Registration Ordinance.
Business Registration means the registration document issued by the District Manager, pursuant to the District Business Registration Ordinance, to a person who is authorized to conduct business within the District and operate a food establishment within the District. Also referred to as “Registration.”
Business Registration Ordinance means the District’s Business Registration Ordinance, Section 1-2-1 et. seq., that requires a person or business obtain a registration document from the District Manager prior to engaging in business within the District.
Commissary means a processing establishment, restaurant, or any other place in which food, containers or supplies are kept, handled, prepared, packaged or stored.
Corrective Action Plan means a written agreement between the registration holder and the District Manager and/or IHS that outlines conditions and corrective actions that must be met to prevent suspension or revocation of a food establishment’s registration.
District Manager means the position responsible for the administration and enforcement of ordinances of the District under Article VII of the 19 Pueblos District Charter. For purposes of this Ordinance, this also includes the District Manager’s designated agent(s) which can include District staff, contractors or Indian Health Service representatives. The District Manager is also considered as the “Regulatory Authority” as referenced in the U.S. Food and Drug Administration Food Code.
Food means any raw, cooked or processed edible substance or ingredient, regardless of its form (liquid, solid, frozen, etc.), that is used or intended for use or for sale, in whole or in part, for human consumption. This includes raw, processed, or semi-processed food, as well as drinks, ice and substances used in food preparation.
Food Code means the most current version of the U. S. Food and Drug Administration Food Code.
Food Establishment means any place within the District where food is stored, processed, packaged, repackaged, or prepared and intended for human consumption, regardless of whether the consumption is on or off the premises, regardless of its permanence, and regardless of whether there is a charge for the food. A food establishment does not include a kitchen in a private home outside of the District Lands, or a home-delivery vehicle and service, including but not limited to pizza delivery, third party ordering and delivery services, or grocery delivery services.
Food Safety Plan means a comprehensive written plan that outlines procedures to control food safety hazards and ensures that the food establishment is operating under safe conditions to protect the general public health and that the food is safe to eat.
Indian Health Service means the Division of Environmental Health Services – Office of Environmental Health and Engineering – Albuquerque Area Indian Health Service, which provides assessments and surveys of various facilities, food establishments and operations on the District for food safety. Referred to as “IHS.”
Imminent Health Hazard means any condition or circumstance which, in the judgment of the District Manager, could be immediately injurious to life, health, or safety; or as defined in the Food Code.
Registration Holder means the legal entity responsible for the operation of the food establishment such as the owner, owner’s agent, or other person.
Person means any natural person, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, or any entity, department, agency, instrumentality or political subdivision of tribal, federal or state government.
Person-In-Charge means the individual present in a food establishment who is the apparent supervisor of the food establishment at the time of inspection. If no individual is the apparent supervisor, then any employee present is the Person-in-Charge.
Rule means any rules promulgated by the District Manager pursuant to this Ordinance.
Ordinance means the District Food Service and Retail Ordinance.
Oversight Commission means the commission established by Article VI of the 19 Pueblos District Charter.

Section 9-1-4. Applicability.

The District Food Service and Retail Ordinance applies to all food establishments operating for any period of time within the District. Food establishment applicants, employees and any persons who are engaged with the food establishment are required to comply with this Ordinance.

Section 9-1-5. Promulgation of Rules.

The District Manager may promulgate reasonable rules to carry out the intent and purpose of this Ordinance subject to the approval by resolution of the Oversight Commission.

Section 9-1-6. Availability of Ordinance.

A copy of this Ordinance and any rules shall be kept on file in the District Manager’s Office, and be available for inspection by the public during regular business hours. A copy of the Ordinance and rules shall be available to any individual upon request and the payment of a reasonable charge as set by the District Manager. The Ordinance and any rules shall be posted on the District’s publicly available website.

Section 9-1-7. District Business Registration Required for Food Establishments; Application.

Registration Required.
1. No person shall operate a food establishment in the District without a valid registration issued by the District Manager for that food establishment pursuant to the Business Registration Ordinance.
2. The registration holder shall be responsible for ensuring that the food establishment complies with this Ordinance, rules, and other applicable District laws.
3. The registration shall be posted in accordance with the Business Registration Ordinance requirements.
4. No property owner or commissary shall knowingly allow a food establishment to operate on the premises of their property without a valid registration.
Business Registration Application Process for Food Establishments
1. All persons proposing to prepare or sell food within the District shall submit a business registration application to the District Manager as required under the Business Registration Ordinance within a reasonable amount of time prior to the anticipated opening date of the food establishment or commencement of services within the District.
2. Upon receipt of a complete business registration application, the District Manager shall review the application and contact the applicant as needed to ensure that the following requirements are met:
  1. Applicant has a current and valid food handler permit issued by the IHS, the State of New Mexico, the City of Albuquerque or a Tribe;
  2. The applicant has submitted a food safety plan which has been reviewed and approved by the District Manager or other appropriate party;
  3. A food and safety inspection of the food establishment is conducted and an inspection report has been issued to the applicant, and a copy is provided to the District Manager; and
  4. If the inspection report lists any deficiencies, and it is determined that operation may commence with the appropriate corrections, the applicant must show that a corrective action plan has been submitted and the applicant is in compliance with the corrective action plan; or
  5. The inspection report does not list any deficiencies so that operation of the food establishment as provided in the food safety plan is recommended.
3. The District Manager may utilize a contract inspector to conduct an inspection and evaluation of a food establishment that is substantially similar to the process described above.
Issuance of Business Registration. The District Manager shall issue a registration in accordance with the Business Registration Ordinance to any person for a food establishment that demonstrates compliance with this Ordinance, rules and other applicable District laws.
Registration for a Food Establishment is Non-Transferrable. Registration holders may not transfer registrations from one person to another person or from one location to another location. When a change in location or ownership of a food establishment occurs, a new registration application shall be submitted to and a new registration shall be issued by the District Manager prior to operating as a food establishment.

Section 9-1-8. Suspension; Revocation; Reinstatement of Business Registration; Corrective Action Plans.

Suspension of Registration. The District Manager may immediately suspend a business registration when the District Manager finds:
1. The food establishment fails to comply with the requirements of this Ordinance, rules, or other applicable District laws;
2. The food establishment is violating a condition of its registration;
3. An imminent health hazard at the food establishment;
4. A food establishment has failed to follow any corrective actions within the timeframe prescribed by the District or IHS;
5. A food establishment has violated a corrective action plan;
6. A food establishment employee has refused to allow the District Manager or IHS representative to enter the food establishment after proper identification has been tendered;
7. The District Manager has issued prior violations, citations or penalties to the food establishment for the same offense; or
8. A commissary is allowing any person to operate a food establishment on its premises that is not in possession of a valid registration.
Suspension Procedure.
1. The District Manager shall notify the registration holder of the suspension and the required closure in writing. Notice of registration suspension shall be provided in accordance with Section 1-2-12.C. of the Business Registration Ordinance.
2. When a business registration is suspended, the District Manager shall order the closure of the food establishment. The food establishment shall not operate while the registration is suspended.
3. The food establishment shall remain closed until the suspension is modified, or the suspension is vacated by the District Manager when the conditions leading to the suspension no longer exist, or the registration is revoked.
4. The registration holder may protest the registration suspension in accordance with Section 1-2-12.E of the Business Registration Ordinance.
Reinstatement of Suspended Registration. Any person whose registration has been suspended may at any time request a re-inspection for the purpose of reinstatement of the registration. The District Manager shall reinstate the registration if, after performing a re-inspection, the District Manager finds that the registration holder complies with the requirements of this Ordinance, rules, and other applicable District laws.
Revocation of Registration. Business registrations may be revoked by the District Manager when:
1. A food establishment registration has been suspended and not reinstated;
2. A food establishment has received multiple violations, citations or penalties under the same registration; or
3. The severity of the violation(s) justifies revocation of the registration.
Revocation Procedure.
1. The District Manager shall notify the registration holder of the revocation and the required closure in writing. Notice of revocation shall be provided in accordance with Section 1-2-12.C. of the Business Registration Ordinance.
2. When a registration is revoked, the District Manager shall order the closure of the food establishment. The food establishment shall not operate while the registration is revoked.
3. The food establishment shall remain closed until the revocation is modified, or the revocation is vacated by the District Manager when the conditions leading to the revocation no longer exist.
4. The registration holder may protest the registration revocation in accordance with Section 1-2-12.E. of the Business Registration Ordinance.
Corrective Action Plan. In lieu of suspension or revocation of a registration, the District Manager may allow a food establishment to follow a corrective action plan for current or past failure of the food establishment or registration holder to meet the requirements of this Ordinance.
1. A corrective action plan shall be on a form approved by the District Manager and include all written requirements for operation of the food establishment, and be signed by the District Manager and the registration holder.
2. The District Manager may amend a corrective action plan when a food establishment submits a written request to the District Manager and the District Manager determines that the amendment will not pose a risk to public health.
3. Each corrective action plan shall remain in place until the District Manager has determined that the food establishment has satisfactorily complied with the corrective action plan and is in compliance with this Ordinance, rules and all applicable District laws.

Section 9-1-11 Inspection of Food Establishments; Investigation of Foodborne Illness.

Right of Inspection. The District Manager shall make, or cause to make, such inspections of food establishments as necessary to assure compliance with this Ordinance and any rules. Inspection frequency shall be based on the risk category of each food establishment.
1. The District Manager may make more frequent inspections of food establishments in response to complaints regarding unsafe conditions or foodborne illness.
2. At the conclusion of each inspection, a copy of the inspection report shall immediately be furnished to the registration holder or person-in-charge of the food establishment indicating the degree of compliance or noncompliance with the provisions of the Food Code, this Ordinance, rules and other applicable District laws.
3. The registration holder or person-in-charge of the food establishment may accompany the District Manager during the inspection.
4. The District Manager shall be permitted to examine and obtain copies of the records of the food establishment, pertinent information related to food source and supplies received, pest control records, if any, and a list of food establishment employees and their training records.
Investigation of Foodborne Illness. The District Manager is authorized to make such inspections of buildings, premises, and documents as deemed necessary to investigate and abate foodborne illness or any violation of this Ordinance which poses a threat to human health. For the purpose of making such inspections, the District Manager is authorized to enter, examine, or survey at all reasonable times and take samples of food for testing. Such entry shall be made in a manner as to minimize inconvenience to the person-in-charge. In the event entry is denied or resisted the District Manager is authorized to seek an order for this purpose from the District’s Court.
Refusal of Entry. If entry of the District Manager is refused, after presentation of proper identification, to fully inspect any and all premises or facilities at any reasonable time, the District Manager may:
1. Issue a civil penalty pursuant to Section 1-2-13 of the Business Registration Ordinance; and
2. Proceed to obtain a search warrant by filing a complaint made before the District’s Court.
Corrective Actions. Upon inspection, the District Manager shall provide the registration holder or person-in-charge with a written description of any corrective actions to be taken, outlining the timeframe in which corrective actions must be completed for any violation of this Ordinance, rules or other applicable District laws.
It is a civil offense pursuant to Section 1-2-13.C. of the District’s Business Registration Ordinance for any person to threaten, intimidate, use violence, or use physical force to intentionally obstruct, impede, or interfere with the District Manager, any District employee or District agent while in the performance of their duties as authorized by this Ordinance.

Section 9-1-13 Food Safety Training Requirements.

All food establishment employees shall be adequately trained in food safety in a manner consistent with the Ordinance and any rules.

Section 9-1-14 Food Establishments Wishing to Sell Outside of the District.

Food establishments with a District Business Registration are only authorized to prepare and sell food within the District. Food establishments wishing to sell food outside of the District are subject to the regulatory requirements of the particular jurisdiction where they seek to sell food and are responsible for seeking regulatory approval from that jurisdiction to sell food.
Food establishments wishing to sell food within the City of Albuquerque (“City”) limits are required to apply for such permits or licenses as required by the City. If requested, the District Manager will submit to the City the District and/or IHS reports as proof of the food establishment’s compliance with the District’s laws and requirements for food preparation and sales within the District.

CHAPTER 2 - RAW PRODUCE STANDS

Section 9-2-1. Definitions.

For the purpose of this Ordinance, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

19 Pueblos District means all lands subject to the jurisdiction of the Governing Council pursuant to the 19 Pueblos District Charter. Also referred to as “District.”
Business Registration means a registration document issued by the District Manager, pursuant to the District Business Registration Ordinance, to a person who is authorized to conduct business within the District and operate a Food Establishment within the District. Also referred to as “Registration.”
Business Registration Ordinance means the District’s Business Registration Ordinance, Section 1-2-1 et. seq., that requires a person or business to obtain a registration document from the District Manager prior to engaging in business within the District.
District Manager means the position responsible for the administration and enforcement of ordinances of the District under Article VII of the 19 Pueblos District Charter. For purposes of this Ordinance, this also includes the District Manager’s designated agent(s) which can include District staff, contractors or Indian Health Service representatives.
Ordinance means the District Raw Produce Stands Ordinance.
Person means any natural person, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, or any entity, department, agency, instrumentality or political subdivision of tribal, federal or state government.
Raw Produce Vending Stand means any table, portable or established structure, truck, trailer, wagon, cart or other vehicle used for selling or offering for sale at retail raw or unprepared product such as fruits, vegetables, nuts or other produce.
Vending Raw Produce means the act or process of selling or offering for sale at retail raw or unprepared produce such as fruits, vegetables, nuts or other produce from any raw produce vending stand.

Section 9-2-2. District Registration.

Registration required. It shall be unlawful for any person to engage in vending raw food within the 19 Pueblos District unless they possess a valid registration issued by the District Manager. Such registration shall be posted in accordance with the Business Registration Ordinance, and only such persons who comply with the requirements of the Business Registration Ordinance and other applicable laws, rules and regulations shall receive or retain such a registration. This registration shall be issued to a specific person for a specific stand at a specified location and shall not be transferrable to another person, stand or location.
Revocation of Registration. Any registration issued under the Business Registration Ordinance may be revoked by the District Manager upon violation of the Business Registration Ordinance and any other applicable laws, rules and regulations, provided that any person whose registration is revoked may protest the revocation in accordance with Section 1-2-12.E. of the Business Registration Ordinance.
Fees. No registration for a raw food stand shall be issued until the applicable fees have been paid and an inspection by the District Manager has been made indicating that such person has complied with all of the provisions of this Ordinance

Section 9-2-3. Operational Requirements.

Each person engaged in vending raw produce shall comply with the following requirements:
1. All produce shall at all times be at least two feet above the surface of the sidewalk or ground.
2. No person shall occupy or be permitted to occupy as a sleeping or dwelling place any raw produce vending stand.
3. No animals or fowls shall be allowed or kept in any raw produce vending stand or in the immediate parking and operational area which area may be known as a "market place" or "open market."
4. All means necessary for the elimination of insects and rodents shall be used.
5. All employees shall wear clean outer garments and shall keep their hands clean at all times while handling produce. Employees shall not expectorate in or around the raw produce vending stand.
6. The premises and interiors of all raw produce vending stands and market places shall be kept clean and free of litter or rubbish.

Section 9-2-4. Inspection.

When the District Manager discovers the violation of any item of sanitation, the District Manager shall make a second inspection after the lapse of such time as deemed reasonably sufficient for the defect to be remedied, and the second inspection shall be used in determining compliance with the requirements of this Ordinance, and other applicable District laws, rules or regulations. Any violation of the same item on such second inspection shall call for the immediate revocation of the registration

Section 9-2-5. Penalty.

Any person who violates any provision of this Ordinance shall be subject to the civil penalty provisions of Section 1-2-13 of the Business Registration Ordinance.