New Mexico Environment Department Food Program Provisions and Procedures

7.6.2.8 GENERAL PROVISIONS AND PROCEDURES:

A. Plan Review:

The plan review applicant for a new or remodeled food establishment shall submit plans and specifications for evaluation and approval by the Health Authority thirty (30) days prior to start of construction. Plans and specifications shall be submitted thirty (30) days prior to the opening of an existing facility by a new permittee where current plans and specifications are not on file with the Health Authority.
Plans and specifications shall include, but are not limited to, major menu items, anticipated volume of food to be prepared, served or sold and detailed information on refrigeration, cooking, hot-holding and warewashing equipment to determine adequacy of such equipment to meet requirements outlined in 7.6.2.9. If for any reason, the plans and specifications as originally specified are to be altered or changed, the Health Authority shall be contacted prior to making any changes or alterations. Plans and specifications for food processing establishments shall include all information required by 7.6.2.12.G.

B. Permits: Issuance, Expiration And Renewal:

No person shall operate a food establishment without a current permit. Permits are not transferable from person to person or from location to location.
Prior to the issuance of any permit or the renewal of an annual permit, the Health Authority shall make inspections of the food establishment as it deems necessary, and the person in charge should be able to demonstrate knowledge of food operations as contained in this part (7.6.2 NMAC). For a new establishment, a permit fee submittal form with the fee required by 7.6.2.8.K shall be provided to the Health Authority at the time of the final pre-~opening inspection when approval-to-open is granted.
Any person seeking an initial permit or applying for a new permit after a permit revocation shall file a written application with the Health Authority. The application shall:
The Health Authority shall either grant the permit, grant the permit subject to conditions, deny the permit, or restrict the permit to menu items or process as specified within:
The Health Authority may deny any application for a permit if it deems that the operation of the food establishment will not comply with:
If the Health Authority denies a permit, grants a permit subject to conditions, or restricts a permit, the Health Authority shall notifies the applicant by certified mail of the action taken and the reasons for that action.
Each permit issued by the Health Authority shall include an expiration date.
If the applicant is dissatisfied with the action taken by the Health Authority, the applicant may request a hearing before the Secretary. The request must be made in writing to the
Secretary within fifteen (15) working days after the applicant has received notice of the
Health Authority’s action. Unless a timely request for a hearing is made, the decision of the Health Authority shall be final.
Hearings before the Secretary shall be conducted in accordance with 7.6.2.8.E of this Part. In the hearing the burden of proof shall be upon the applicant. Hearings shall b~ held within fifteen (15) working days after receipt of the request. The Secretary shall notify the applicant by certified mail of the date, time and place of the hearing.
Annual permits may be renewed upon submission of a renewal form provided by the Health Authority and payment of:
After expiration of an annual permit, the food establishment shall not be operated until a new permit is issued, unless the renewal form and annual permit fee, if applicable, were received by the Health Authority on or before the expiration date of the permit.
If a permit is not renewed as provided in 7.6.2.8.B(10), no new permit shall be issued except upon submission of a new permit application and the applicant’s compliance with all applicable provisions of 7.6.2.8.A&B for a new food establishment.
Permits for temporary food establishments shall be for use at a fixed location in conjunction with a single event or celebration for a period not exceeding the event or celebration, or thirty (30) days, whichever is shorter, and may not be renewed
Self-contained mobile food service units shall notify the Health Authority office of jurisdiction at least twenty four (24) hours before operating in any jurisdictional area of New Mexico other than that of the permitted address.
The permit shall be posted in a conspicuous place within the food establishment where the general public can readily see it.
Any food establishment that caters or otherwise serves food at locations other than on the primary premises of the permitted establishment shall do so only in compliance with this Part (7.6.2 NMAC) The fact that catering or remote service operations will be conducted shall be indicated fully on the permit and the application for the food establishment. When a food establishment has an adjunct/additional food catering business, each such business shall be permitted separately.
A permittee shall be responsible for all food service operations conducted on the premises for which the permit is issued, except for any such operations conducted by another permittee who holds a valid permit for the same premises. Each pennittee shall be responsible for any shared facilities or equipment.
The issuance of a permit does not relieve any person operating a food establishment from the responsibility of complying with other laws, ordinances and regulations.

C. Permit Suspension And Revocation:

Except as otherwise provided in 7.6.2.8.D, the Health Authority may suspend or revoke a permit for a food establishment for repeated violations of:
Not less than seven (7) working days prior to the suspension or revocation of a food service or food processor permit, the Health Authority shall notify the permittee by certified mail of the impending suspension or revocation and the reasons for suspension or revocation. The notice shall state the date, time and place where a hearing on the suspension or revocation will take place. Failure to appear shall result in immediate suspension/revocation as appropriate. The permittee of any temporary food service establishment may be notified of the impending suspension or revocation hearing immediately after the repeated violations are noted. Hearings for temporary food service establishments may be held as soon as practicable after such notification.
Hearings shall be conducted by the Secretary in accordance with 7.6.2.8.E. In the hearing, the burden of establishing the violations shall rest upon the Health Authority. The permittee must then show why the permit should not be suspended or revoked.
The suspension of a permit following a hearing shall not continue beyond the time that the conditions leading to the suspension cease to exist as determined by the Health Authority. The inspection to determine whether such conditions have been corrected must be at the request of the food establishment permittee. Training of staff and/or implementation of operating procedures to address those conditions that led to the suspension may be considered satisfactory evidence of compliance.
Except as provided by 7.6.2.8.E(6) & 7.6.2.8.G(3) & 7.6.2.8.I(2) revocation proceedings pursuant to 7.6.2.8.C(2) shall not be undertaken unless a permittee’s permit has previously been suspended for violations of a similar nature for which the Health Authority now proposes revocation. In all instances the revocation of a permit under this section shall require prior notice and hearing to the permittee.
The Health Authority shall not consider the reapplication for a permit from a permittee whose permit has been revoked until:

D. Immediate Suspension:

Notwithstanding the provisions of 7.6.2.8.C, the Health Authority may suspend a permit without prior notice to the permittee if the Health Authority determines, after inspection, that conditions within a food establishment covered by this Part (7.6.2 NMAC) present a substantial danger of illness, serious physical harm, or death to persons who might patronize or be employed at the food establishment. Communication to the permittee or the permittee’s designated agent or in the absence of either, to any employee on the premises, is sufficient to make the suspension effective.
No suspension taken under 7.6.2.8.D shall continue beyond the time that the conditions causing the suspension cease to exist, as determined by an inspection by the Health Authority upon request of the permittee. The Health Authority shall conduct a requested inspection within three (3) working days of a verbal or written request.
When suspension is ordered pursuant to 7.6.2.8.D, the Health Authority shall inform the permittee that the Health Authority shall afford a hearing within seven (7) working days, upon request of the permittee. If such a request is received, the Health Authority shall notify the permittee, within two (2) working days after receipt of the request, of the date, time, and place of the hearing.

E. Hearings:

Hearings shall be before the Secretary.
A record shall be made of each hearing, the cost of which shall be borne by the Health Authority. Those persons requesting transcripts shall pay transcript costs.
In hearings, the Rules of Civil Procedure and the Rules of Evidence shall not apply, but the hearings shall be conducted so that all relevant views, arguments and testimony are amply and fairly presented without undue repetition.
The Secretary shall allow the Health Authority and the affected food establishment permittee to call and examine witnesses, to submit written and oral evidence and arguments, to introduce exhibits and to cross-examine persons who testifies
Action taken by the Secretary shall be by written order within five (5) working days following the hearing. A copy of the order shall be sent by certified mail to the affected food establishment perniittee. The order of the Secretary shall state:
Failure of the permittee or the permittee’s designee to appear for the hearing shall result in immediate permit revocation and establishment closure.

F. Timeliness:

When the last day for performing an act falls on Saturday, Sunday, or a legal state or national holiday, the performance of the act is timely if performed on the next day that is not a Saturday, Sunday, or a legal state or national holiday.
All matters required to be filed or mailed in this Part (7.6.2 NMAC) are timely if deposited in the United States mail on or before the required date.

G. Compliance With Regulations:

An “approved” emblem shall be posted by the Health Authority at a food establishment that is operated in compliance with this Part (7.6.2 NMAC).
An “unsatisfactory” emblem may be posted by the Health Authority at a food establishment when:
An emblem shall be posted in a conspicuous place at each entry to the food establishment where it can be readily seen by the general public and shall be posted or removed only by an authorized agent of the Health Authority. Removal, defacing, or obstruction of an emblem by any person other than an authorized agent of the Health Authority shall result in immediate permit suspension or revocation. Temporary food service establishments and food processing establishments shall be exempt from 7.6.2.8.G(3).

H. Procedures When Infection Is Suspected:

When the Health Authority has reasonable cause to suspect possibility of disease transmission from any food establishment employee, the Secretary shall secure the morbidity history of the suspected employee, or make other investigations as may be indicated, and take appropriate action including immediate pennit suspension.
No person who is infected with a disease in a communicable form that can be spread through food shall work in a food establishment. Such diseases would include but are not limited to Salmonella, Shigella, E. coli, or Hepatitis A. Also excluded from working in a food establishment is anyone suffering symptoms of acute gastrointestinal illness. Such an individual shall not return to work until certified by a physician, in writing, to be infection-free and no longer considered a significant health risk.
Employees engaged in food processing, preparation or service who have communicable forms of skin infections to include but not restricted to cuts, burns, abrasions, boils or bandages on the hands, forearms or face shall be temporarily excluded from work activities in which there is a likelihood of contaminating food or food contact surfaces, unless plastic or surgical gloves are utilized. Other moisture-proof barriers may be approved by the Secretary.
Refusal to comply with any provisions of 7.6.2.8.H shall be grounds for immediate suspension of the permit.

I. Inspection By Health Authority:

The Health Authority shall inspect food establishments at least annually to determine compliance with the Food Service Sanitation Act, the New Mexico Food Act if applicable, and this Part (7.6.2 NMAC). Upon request by, and after proper identification of, the Health Authority official, the permittee shall allow the Health Authority official to enter and inspect all areas of the premises unhindered. Inspection may be done at anytime, based upon health risk, and as often as deemed necessary by the Health Authority, to insure the safety of the public health. The Health Authority official shall be allowed to copy any records pertaining to food service and purchases by the food establishment. Proprietary documents shall not be released, and confidentiality will be protected by the Health Authority, as provided by law.
The permittee or an authorized agent shall be given an opportunity to accompany the Health Authority official on inspection of the establishment and a report shall be furnished to the permittee or other employee as soon as possible after the inspection and prior to any enforcement action(s). Refusal to allow an inspection is grounds for immediate permit suspension or revocation.
During an inspection, the Health Authority may take samples of food and other substances found on the premises for the purpose of determining compliance with provisions of the Food Service Sanitation Act, the New Mexico Food Act and this Part (7.6.2 NMAC).

J. Variances:

Any person seeking a variance from any provisions of this Part shall do so by filing a written petition with the Health Authority. Petitions shall:
The health Authority may grant a petitioner a variance from any requirement prescribed under this Part when it is found, upon presentation of adequate proof, that the granting of the variance will not result in exposing employees, consumers, or the general public to adverse health and safety conditions arising from the operation of the food establishment. Any variance granted shall be for specific time periods and under conditions consistent with the reasons for the variance.
Within ten (10) working days following receipt of the variance petition, the Health Authority shall grant the variance, grant the variance subject to conditions, or deny the variance. The action taken by the Health Authority shall be by written order, a copy of which shall be sent by certified mail to the petitioner. The order shall:
The Health Authority shall maintain a file of all orders issued. The file shall be open for public inspection in accordance with the provisions of law.
Any person who is dissatisfied with the action taken by the Health Authority may request a hearing before the Secretary.
If a timely request for hearing is made, the Secretary shall hold a hearing within fifteen (15) working days after receipt of the request. The Health Authority shall notify the person requesting a hearing, by certified mail, of the date, time and place of the hearing. In the hearing, the burden of proof shall be upon the person requesting the hearing.
In hearings, the Rules of Civil Procedure and the Rules of Evidence shall not apply, but the hearings shall be conducted so that all relevant views, arguments and testimony are amply and fairly presented without undue repetition. The Secretary shall allow the Health Authority, the petitioner and designated representatives to call and examine witnesses, to submit written and oral evidence and arguments, to introduce exhibits and to cross-examine persons who testifies
Based upon the evidence presented at the hearing, the Secretary shall sustain, modify or reverse the action of the Health Authority. The action taken shall be by written order within ten (10) working days following the hearing. The order shall contain the same information as that required for the Health Authority in 7.6.2.8.J(3). A copy of the order shall be sent to the petitioner.

K. Permit Fees:

Except as provided in 7.6.2.8.K(2), permit fees shall be:
The fee established by Paragraph (1) of Subsection K of 7.6.2.8 NMAC shall be waived for:
No discount or refund shall be made for partial years or for permit suspension, revocation or denial in accordance with 7.6.2.8.B, C, or D. After permit revocation, the full fee must be paid for a new permit.
For new food establishments and temporary food service establishments, including permits for new permittees, new locations, or new events, permit fees shall be paid when the application for permit is submitted and shall be verified by the Health Authority before the permit is issued.
Payments shall be accompanied by submittal forms available from the Health Authority.

L. Current Food And Drug Administration Food Code Applicability:

The current United States Public Health Service, Food and Drug Administration Food Code is hereby adopted as a technical reference and interpretation guide.

M. Procedures For Embargo, Recall, And Condemnation:

Whenever the Secretary finds, or has probable cause to believe, that any food product fails to meet health standards or is adulterated with any substance, or is found to be misbranded, such that it may be injurious to human health, the suspected lot shall be embargoed or detained, if not yet distributed to consumers or any retail outlet.

If the suspected lot has been distributed, the food processor shall be given the opportunity to recall the product voluntarily or the suspected lot may be disposed of onsite by methods approved by the Health Authority.
If a voluntary recall is refined, the Secretary may order a mandatory recall of the suspected lot.
When any food product is found, by examination or laboratory analysis, to be in violation of safe health standards, the Secretary may order condemnation and disposal of the product lot, at the expense of the food processor.
[7.6.2.8 NMAC - Rp 7 NMAC 6.1.104 to 114,08/12/2000]