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18 AAC 31.905. Permit suspension and establishment closure

(a) The department may, without prior warning, notice, or hearing, suspend a permit and require that the food establishment immediately stop operating if

(1) an imminent health hazard exists and no immediate correction or containment that is acceptable to the department is available;

(2) during an inspection conducted under 18 AAC 31.900, the operator receives

(A) five or more risk factor or intervention violations;

(B) four risk factor or intervention violations and five or more good retail practice violations; or

(C) three risk factor or intervention violations and eight or more good retail practice violations;

(3) a food establishment is placed under a boil water notice under 18 AAC 80.635 because of a violation of the maximum contaminant level for coliform bacteria, and the operator fails to take the actions required by 18 AAC 31.500(e) ;

(4) the department advises the operator under 18 AAC 80 that one or more samples of the food establishment's public water system are positive for fecal coliforms;

(5) the operator fails to comply with the terms of a conditional permit issued under 18 AAC 31.021, including if

(A) each violation specified under 18 AAC 31.021 is not corrected on or before the date indicated on the conditional permit;

(B) the operator does not make fee payments in compliance with a fee schedule established under 18 AAC 31.021; or

(C) drinking water plans or wastewater plans submitted as required by 18 AAC 31.030 are not approved;

(6) multiple or repeated violations of a requirement of this chapter occur;

(7) a risk factor or intervention violation is not corrected within the time frame designated during an inspection conducted under 18 AAC 31.900;

(8) during a reinspection of a food establishment within a 12-month period, the department notes on an inspection form, three or more risk factor or intervention violations;

(9) the operator or an employee interferes with a department employee or agent in the performance of official duties; or

(10) the department believes that a food establishment or an employee might be the source of a foodborne illness.

(b) The department may, without prior warning, notice, or hearing, issue a notice of closure to a food establishment and require that the food establishment immediately stop operating if a person is operating a food establishment without a valid permit issued under 18 AAC 31.020.

(c) If the department requires a food establishment to stop operating under (a) or (b) of this section, the operator may not resume operating until

(1) a reinspection shows that the conditions that caused the stoppage no longer exist; the department may, if public health is protected and the purpose of this chapter is otherwise satisfied, accept a written agreement with the operator that establishes a schedule for correcting deficiencies that cannot reasonably be corrected before the scheduled reinspection; and

(2) the operator has implemented a food safety management system, including appropriate written standard operating procedures and self-assessments, as specified at 18 AAC 31.902.

(d) If the department requires a food establishment to stop operating under (a) or (b) of this section, the department will order affixed a notice at the food establishment in a place conspicuous to the public that indicates the establishment is closed. The notice may only be removed by the department or by the operator with the department's written consent.

(e) After the department suspends a permit or issues a notice of closure, the operator may request an informal review under 18 AAC 15.185 or may request an adjudicatory hearing under AS 44.62 (Administrative Procedure Act). An adjudicatory hearing is requested by submitting a request for hearing to the commissioner not later than 30 days after the issuance by the department of the notice of suspension or closure. If a timely request for an adjudicatory hearing is received, the commissioner will refer the matter to the office of administrative hearings ( AS 44.64.010 ) for a hearing and recommended decision under 2 AAC 64.100 - 2 AAC 64.990 to the commissioner or to the commissioner's designee if the designee is a person other than the person who issued the contested decision.

History: Eff. 5/18/97, Register 142; am 12/19/99, Register 152; am 12/30/2000, Register 156; am 6/28/2001, Register 158; am 7/11/2002, Register 163; am 12/1/2004, Register 172; am 12/28/2006, Register 180; am 11/5/2017, Register 224

Authority: AS 17.20.005

AS 17.20.010

AS 17.20.020

AS 17.20.072

AS 17.20.180

AS 44.46.020

18 AAC 31.907. Foodborne illness investigation and control

(a) If the department believes a food establishment or an employee might be the source of a foodborne illness, the department may take action necessary to control disease transmission, including suspending the food establishment's permit under 18 AAC 31.905, and actions recommended by the Department of Health and Social Services and

(1) securing an illness history from each employee suspected of transmitting the illness;

(2) restricting a suspect employee's services to an area of the food establishment where there is no danger of transmitting disease or excluding a food employee from the food establishment;

(3) requiring medical or laboratory examination of a suspect employee;

(4) securing records or other information that might assist in the positive identification of persons potentially exposed to the disease; or

(5) obtaining samples of food for laboratory analysis.

(b) If the department restricts or excludes an employee under (a) of this section or in response to a report from an operator, as specified in 18 AAC 31.300(b) (3), the department will release an employee from restriction or exclusion

(1) if the employee provides a statement from a health practitioner that the employee is free of the infection; or

(2) as recommended by the Department of Health and Social Services.

(c) The department may release to the public the name of a food establishment found to be the source of a foodborne illness if the release will assist in the diagnosis, prevention, or treatment of the disease or if otherwise required by law.

History: Eff. 12/28/2006, Register 180

Authority: AS 17.20.005

AS 17.20.020

AS 17.20.072

AS 17.20.180

AS 17.20.290

AS 44.46.020

18 AAC 31.910. Examination, detention, and destruction of food

(a) The department may examine and obtain samples of food offered or displayed for sale to the public.

(b) The department may detain a food product or food ingredient if the department determines, or has cause to believe, that the food product or food ingredient is adulterated, misbranded, or processed or harvested in violation of this chapter. Detention under this subsection is subject to the following procedures:

(1) the department will

(A) order affixed in a conspicuous place to the food product or food ingredient a "detained" tag or other appropriate marking that gives notice that the food product or food ingredient has been detained, and that warns against the removal or disposal of the food product or food ingredient without permission from the department or a court; a person may not move, reprocess, relabel, destroy, or otherwise terminate detention of the food product or food ingredient without the department's written consent;

(B) issue a notice of detention and inform the immediate custodian or operator of conditions under which the detention can be terminated; and

(C) notify the immediate custodian or operator of the results of any laboratory analysis conducted by the department;

(2) the immediate custodian or operator may request an expedited hearing in writing not later than 30 days after receipt of the notice of detention by serving the request on the commissioner and the office of administrative hearings ( AS 44.64.010 ); if a timely request for an expedited hearing is received, the office of administrative hearings will hold an expedited hearing and make a recommended decision to the commissioner or to the commissioner's designee if the designee is a person other than the person who issued the notice of detention; the office of administrative hearings will hold an expedited hearing under AS 44.62 (Administrative Procedure Act) and 2 AAC 64.100 - 2 AAC 64.990 not later than seven days after receipt of a request and will issue a recommended decision not later than seven days after the hearing, or not later than 35 days after the date of the notice of detention, whichever is later; the commissioner will issue a final department decision within the shortest feasible time;

(3) if, after issuing a notice of detention, the department determines that the food product or food ingredient is not adulterated, misbranded, or processed or harvested in violation of this chapter, the department will notify the immediate custodian or operator and order the detention terminated; and

(4) if the department determines that the food product or food ingredient is adulterated, misbranded, processed, or harvested in violation of this chapter, the department will notify the immediate custodian or operator by personal service or certified mail of the corrective action necessary, which may include destruction of the food product or food ingredient.

History: Eff. 5/18/97, Register 142; am 12/19/99, Register 152; am 6/28/2001, Register 158; am 12/28/2006, Register 180; am 11/5/2017, Register 224

Authority: AS 03.05.011

AS 17.20.005

AS 17.20.010

AS 17.20.020

AS 17.20.040

AS 17.20.070

AS 17.20.072

AS 17.20.180

AS 17.20.200

AS 17.20.230

AS 17.20.240

AS 17.20.250

AS 17.20.270

AS 17.20.290

AS 44.46.020

18 AAC 31.915. Civil fines

(a) The department may, without prior warning, notice, or hearing, assess a civil fine of not more than $1,000 for each violation for a serious or repeat violation of this chapter as listed in Table K of this subsection.


TABLE K
SCHEDULE OF FINES
VIOLATION AMOUNT FOR AMOUNT FOR AMOUNT FOR
FIRST OFFENSE SECOND OFFENSE THIRD AND
SUBSEQUENT OFFENSES
Operating without a
permit in violation
of 18 AAC 31.020 2 times the amount
of the annual
permit fee
specified in 18
AAC 31.050 2 times the amount
of the annual
permit fee
specified in 18
AAC 31.050 2 times the amount
of the annual
permit fee
specified in 18
AAC 31.050
Labeling,
placarding, or
consumer advisories
not provided in
violation of 18 AAC
31.060 $250 $500 $1,000
Food is from an
unapproved source
in violation of 18
AAC 31.200 $250 $500 $1,000
Food sold, served,
or used in the
establishment is
unwholesome,
adulterated, or not
safe for human
consumption in
violation of AS
17.20.020 or
17.20.030, or 18
AAC 31.200 $250 $500 $1,000
Food and food
preparation for a
highly susceptible
population not
modified where
required in
violation of 18 AAC
31.215 $250 $500 $1,000
Ready-to-eat food
not protected from
contamination from
raw food in
violation of 18 AAC
31.221 $250 $500 $1,000
Handling
ready-to-eat food
with bare hands in
violation of 18 AAC
31.220 $250 $500 $1,000
Potentially
hazardous food not
cooked, cooled, or
held during
receiving, storage,
preparation,
processing,
display, service,
or transportation
at required
temperatures and
times of violation
of 18 AAC 31.230 -
18 AAC 31.234 $250 $500 $1,000
Potentially
hazardous food not
discarded as
required where time
is used as a public
health control in
violation of 18 AAC
31.236 $250 $500 $1,000
Re-service of
potentially
hazardous food or
unwrapped food that
has previously been
served or sold to a
consumer in
violation of 18 AAC
31.226 $250 $500 $1,000
An employee who has
a condition
described in 18 AAC
31.300 handles food $250 $500 $1,000
A person working in
a food
establishment is
not practicing
strict standards of
cleanliness or
personal hygiene,
including
handwashing, in
violation of 18 AAC
31.310 or 18 AAC
31.315, the results
of which might be a
foodborne illness $250 $500 $1,000
Handwashing
facilities not
installed,
maintained, or
accessible in
violation of 18 AAC
31.416 or 18 AAC
31.525 $250 $500 $1,000
Food-contact
surfaces are not
washed, rinsed, or
sanitized
effectively in
violation of any
provision of 18 AAC
31.422 - 18 AAC
31.424 $250 $500 $1,000
Water is from an
unapproved public
water system if the
system is required
to be approved, or
water is not
potable in
violation of 18 AAC
31.500 $250 $500 $1,000
A water system does
not provide hot and
cold running water
under pressure as
required by this
chapter, or has a
cross-connection
with a nonpotable
supply or a back
siphonage potential $250 $500 $1,000
Sewage or liquid
waste not disposed
of in an approved
manner in violation
of 18 AAC 31.510 $250 $500 $1,000
Insects, rodents,
or other prohibited
animals are on the
premises in
violation of 18 AAC
31.535 or 18 AAC
31.575 $150 $300 $600
Poisonous or toxic
material improperly
labeled, stored, or
used in violation
of 18 AAC 31.570 $250 $500 $1,000
A HACCP plan is not
provided as
required in
violation of 18
AAC 31.710 $250 $500 $1,000
Standard operating
procedures or
self-assessments
are not implemented
or conducted where
required in
violation of 18 AAC
31.902 $250 $500 $1,000
A violation of
another requirement
of 18 AAC 31 not
listed above $0 $200 $400


(b) For the purpose of determining whether a civil fine is assessed under this section, the department will consider aggravating or mitigating factors, including

(1) the history of previous violations by the operator or establishment;

(2) the seriousness of the violation, including actual or potential hazard to the health and safety of the public;

(3) whether the violation occurred due to negligence or intentional conduct;

(4) whether the operator has demonstrated good faith efforts to achieve rapid compliance after notification of a violation, including the operator's current status of compliance and the number of continuing violations;

(5) the actual or potential economic gain to the operator by violating a provision of this chapter;

(6) enforcement costs incurred by the department relating to the violation; and

(7) payment of civil fines previously assessed for same violation.

(c) After the department assesses a civil fine under this section, the operator may request an informal review under 18 AAC 15.185 or an adjudicatory hearing under AS 44.62 (Administrative Procedure Act). An adjudicatory hearing may be requested by submitting a request to the commissioner not later than 30 days after the notice of assessment of the civil fine. Upon receipt of a timely request for an adiudicatory hearing, the commissioner will refer the matter to the office of administrative hearings ( AS 44.64.010 ) for a hearing and recommended decision under 2 AAC 64.100 - 2 AAC 64.990 to the commissioner or to the commissioner's designee if the designee is a person other than the person who assessed the civil fine.

History: Eff. 12/28/2006, Register 180; am 11/5/2017, Register 224

Authority: AS 17.20.005

AS 17.20.072

AS 17.20.180

AS 17.20.190

AS 17.20.315

AS 17.20.365

AS 44.46.020

18 AAC 31.920. Food protection managers

Repealed.

History: Eff. 5/18/97, Register 142; am 12/19/99, Register 152; repealed 12/28/2006, Register 180

18 AAC 31.925. Food service establishment recognition program

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