Administrative Code

Virginia Administrative Code
6/19/2024

Part VIII. Compliance and Enforcement

Article 1
Applicability of Chapter

12VAC5-421-3510. Public health protection.

A. The department shall apply this chapter to promote its underlying purpose, as specified in 12VAC5-421-30, of safeguarding public health and ensuring that food is safe , unadulterated and honestly presented when offered to the consumer.

B. In enforcing the provisions of this regulation, the department shall assess existing facilities or equipment that were in use before June 10, 2021, based on the following considerations:

1. Whether the facilities or equipment are in good repair and capable of being maintained in a sanitary condition;

2. Whether food-contact surfaces comply with 12VAC5-421-960 through 12VAC5-421-1060; and

3. Whether the capacities of cooling, heating, and holding equipment are sufficient to comply with 12VAC5-421-1450.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3520. Preventing health hazards, provision for conditions not addressed.

A. If necessary to protect against public health hazards or nuisances, the department may impose specific requirements in addition to the requirements contained in this regulation that are authorized by law.

B. The department shall document the conditions that necessitate the imposition of additional requirements and the underlying public health rationale. The documentation shall be provided to the permit applicant or permit holder and a copy shall be maintained in the department's file for the food establishment.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3530. Application of Administrative Process Act.

The provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall govern the procedures for rendering all case decisions, as defined in § 2.2-4001, and for issuing all orders and regulations promulgated pursuant to the authority of Title 35.1.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-421-3540. [Reserved]. (Reserved)

12VAC5-421-3550. (Repealed.)

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; repealed, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3560. (Repealed.)

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 35, Issue 1, eff. October 3, 2018; repealed, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3570. Variances.

A. The commissioner or his designee may grant a variance to this chapter by following the appropriate procedures set forth in this section and 12VAC5-421-3580.

B. The commissioner or the commissioner's designee may grant a variance if he finds that the hardship imposed, which may be economic, outweighs the benefits that may be received by the public and that granting such a variance does not subject the public to unreasonable health risks or environmental pollution.

C. Any owner or permit holder who seeks a variance shall apply in writing . The request shall be sent to the local health department. The application shall include:

1. A citation to the regulation from which a variance is requested;

2. The nature and duration of the variance requested;

3. Any relevant analytical results including result of relevant tests conducted pursuant to the requirements of these regulations;

4. Statements or evidence which establishes that the public health, welfare and environment would not be adversely affected if the variance were granted;

5. Suggested conditions that might be imposed on the granting of a variance that would limit the detrimental impact on the public health and welfare;

6. A HACCP plan if required as specified under 12VAC5-421-3620 A that includes the information specified under 12VAC5-421-3630 as it is relevant to the variance requested.

7. Other information believed pertinent by the applicant; and

8. Such other information as the district or local health department or commissioner may require.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3580. Evaluation of a variance application.

A. The commissioner shall act on any variance request submitted pursuant to 12VAC5-421-3570 C within 60 days of receipt of the request.

B. In evaluating a variance application, the commissioner shall consider such factors as the following:

1. The effect that such a variance would have on the operation of the food establishment.

2. The cost and other economic considerations imposed by this requirement;

3. The effect that such a variance would have on protection of the public health, safety, welfare and the environment;

4. Such other factors as the commissioner, deputy commissioner, or director of the office of environmental health services may deem appropriate.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3590. Disposition of a variance request.

A. If the commissioner proposes to deny the variance he shall provide the owner an opportunity to an informal fact-finding conference as provided in § 2.2-4019 of the Code of Virginia. Following this opportunity for an informal fact-finding conference the commissioner may reject any application for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection.

B. If the commissioner proposes to grant a variance request submitted pursuant to this part, the applicant shall be notified in writing of this decision. Such notice shall identify the variance, the food establishment involved, and shall specify the period of time for which the variance will be effective. Such notice shall provide that the variance will be terminated when the food establishment comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the food establishment has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the variance shall be as noted in the variance letter.

C. All variances granted to any food establishment may not be transferable unless otherwise stated. Each variance shall be attached to the permit to operate and posted prominently in a conspicuous place for public view.

D. No owner or permit holder may challenge the terms or conditions of a variance after 30 calendar days have elapsed from the receipt of the variance.

E. Each variance is revoked when the permit to operate is revoked, suspended, or expired.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 32, Issue 22, eff. July 12, 2016.

12VAC5-421-3595. Conformance with approved procedures.

If the commissioner or the commissioner's designee grants a variance as specified in 12VAC5-421-3570, or a HACCP plan is otherwise required as specified under 12VAC5-421-3620, the permit holder shall:

1. Comply with the HACCP plans and procedures that are submitted as specified under 12VAC5-421-3630 and approved as a basis for the variance;P and

2. Maintain and provide to the department, upon request, records specified under subdivisions 4 and 5 c of 12VAC5-421-3630 that demonstrate that the following are routinely employed:

a. Procedures for monitoring the critical control points;PF

b. Monitoring of the critical control points;PF

c. Verification of the effectiveness of the operation or process;PF and

d. Necessary corrective actions if there is failure at the critical control point. PF

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3595. Conformance with approved procedures.

If the commissioner or the commissioner's designee grants a variance as specified in 12VAC5-421-3570, or a HACCP plan is otherwise required as specified under 12VAC5-421-3620, the permit holder shall:

1. Comply with the HACCP plans and procedures that are submitted as specified under 12VAC5-421-3630 and approved as a basis for the variance;P and

2. Maintain and provide to the department, upon request, records specified under subdivisions 4 and 5 c of 12VAC5-421-3630 that demonstrate that the following are routinely employed:

a. Procedures for monitoring the critical control points;PF

b. Monitoring of the critical control points;PF

c. Verification of the effectiveness of the operation or process;PF and

d. Necessary corrective actions if there is failure at the critical control point. PF

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3595. Conformance with approved procedures.

If the commissioner or the commissioner's designee grants a variance as specified in 12VAC5-421-3570, or a HACCP plan is otherwise required as specified under 12VAC5-421-3620, the permit holder shall:

1. Comply with the HACCP plans and procedures that are submitted as specified under 12VAC5-421-3630 and approved as a basis for the variance;P and

2. Maintain and provide to the department, upon request, records specified under subdivisions 4 and 5 c of 12VAC5-421-3630 that demonstrate that the following are routinely employed:

a. Procedures for monitoring the critical control points;PF

b. Monitoring of the critical control points;PF

c. Verification of the effectiveness of the operation or process;PF and

d. Necessary corrective actions if there is failure at the critical control point. PF

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

Article 2
Plan Submission and Approval

12VAC5-421-3600. Facility and operating plans.

A permit applicant or permit holder shall submit to the department properly prepared plans and specifications for review and approval before:

1. The construction of a food establishment;Pf

2. The conversion of an existing structure for use as a food establishment;Pf or

3. The remodeling of a food establishment or a change of type of food establishment or food operation as specified under subdivision 3 of 12VAC5-421-3700 if the department determines that plans and specifications are necessary to ensure compliance with this chapter.Pf

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3610. Contents of the plans and specifications.

The plans and specifications for a food establishment, including a food establishment specified under 12VAC5-421-3620, shall include, as required by the department based on the type of operation, type of food preparation, and foods prepared, the following information to demonstrate conformance with the provisions of this chapter:

1. Intended menu;

2. Anticipated volume of food to be stored, prepared, and sold or served;

3. Proposed layout, mechanical schematics, construction materials, and finish schedules;

4. Proposed equipment types, manufacturers, model numbers, locations, dimensions, performance capacities, and installation specifications;

5. Evidence that standard procedures ensuring compliance with the requirements of this chapter are developed or are being developed; and

6. Other information that may be required by the department for the proper review of the proposed construction, conversion or modification, and procedures for operating a food establishment.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3620. When a HACCP plan is required.

A. Before engaging in an activity that requires a HACCP plan, a permit applicant or permit holder shall submit to the department for approval a properly prepared HACCP plan as specified under 12VAC5-421-3630 and the relevant provisions of this chapter if:

1. Submission of a HACCP plan is required according to law;

2. A variance is required as specified under 12VAC5-421-700 D 4,12VAC5-421-860, or 12VAC5-421-1300 B; or

3. The department determines that a food preparation or processing method requires a variance based on a plan submittal specified under 12VAC5-421-3610, an inspectional finding, or a variance request.

B. Before engaging in reduced oxygen packaging without a variance as specified under 12VAC5-421-870, a permit applicant or permit holder shall submit a properly prepared HACCP plan to the department.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3630. Contents of a HACCP plan.

For a food establishment that is required under 12VAC5-421-3620 to have a HACCP plan, the permit applicant or permit holder shall submit to the department a properly prepared HACCP plan that includes:

1. General information such as the name of the permit applicant or permit holder, the food establishment address, and contact information;

2. A categorization of the types of time/temperature control for safety food that is to be controlled under the HACCP plan;Pf

3. A flow diagram or chart for each specific food or category type that identifies:

a. Each step in the process,Pf

b. The hazards and controls for each step in the flow diagram or chart,Pf

c. The steps that are critical control points,Pf

d. The ingredients, materials, and equipment used in the preparation of that food,Pf and

e. Formulations or recipes that delineate methods and procedural control measures that address the food safety concerns involved.Pf

4. A critical control points summary for each specific food or category type that clearly identifies:

a. Each critical control point;Pf

b. The critical limits for each critical control point;Pf

c. The method and frequency for monitoring and controlling each critical control point by the food employee designated by the person in charge;Pf

d. The method and frequency for the person in charge to routinely verify that the food employee is following standard operating procedures and monitoring critical control points;Pf

e. Action to be taken by the person in charge if the critical limits for each critical control point are not met;Pf and

f. Records to be maintained by the person in charge to demonstrate that the HACCP plan is properly operated and managed;Pf

5. Supporting documents such as:

a. Food employee and supervisory training plan addressing food safety issues;Pf

b. Copies of blank records forms that are necessary to implement the HACCP plan;Pf

c. Additional scientific data or other information, as required by the department supporting the determination that food safety is not compromised by the proposal;Pf and

6. Any other information required by the department.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3640. Confidentiality -- trade secrets.

The department shall treat as confidential in accordance with law, information that meets the criteria specified in law for a trade secret and is contained on inspection report forms and in the plans and specifications submitted as specified under 12VAC5-421-3610 and 12VAC5-421-3630.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3650. Preoperational inspections.

The department shall conduct one or more preoperational inspections to verify that the food establishment is constructed and equipped in accordance with the approved plans and approved modifications of those plans, has established standard operating procedures as specified under subdivision 5 of 12VAC5-421-3610 and is in compliance with law and this chapter.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

Article 3
Permit to Operate

12VAC5-421-3660. Permits.

A. No person shall own, establish, conduct, maintain, manage, or operate any food establishment in this Commonwealth unless the food establishment is permitted as provided in this section. All permits shall be in the name of the owner . Permits shall not be issued to newly constructed or extensively remodeled food establishments until a certificate of occupancy has been issued by the Building Official. Only a person who complies with the requirements of this part shall be entitled to receive or retain such a permit.

B. Permits issued shall not be transferable from one person to another or from one location to another. A new owner shall be required to make a written application for a permit. The application forms are obtainable at all local health departments.

C. Any person operating a food establishment with a valid permit who desires to expand or modify the establishment, shall notify the local health department in the jurisdiction where the food establishment is located, and the local health department shall determine whether such expansion, modification, or reclassification is in compliance with the applicable sections of this chapter.

D. The permit shall be posted in every food establishment in a place where it is readily observable by the public transacting business with the establishment.

E. Permits shall expire annually otherwise not to exceed 12 months from the date of issuance.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3670. Application procedure, submission before proposed opening.

A. An applicant seeking to operate a nontemporary food establishment shall submit an application for a permit at least 30 calendar days before the date planned for opening a food establishment or at least 30 calendar days before the expiration date of the current permit for an existing facility.

B. An applicant seeking to operate a temporary food establishment shall submit an application for a permit at least 10 calendar days before the date planned for opening the temporary food establishment.

C. Any applicant who fails to complete the application process within 12 months of receipt of the application by the local health department's office may be required to submit a new application and plan.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3680. Form of submission.

A person desiring to operate a food establishment shall submit to the department a written application for a permit on a form provided by the department.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3690. Qualifications and responsibilities of applicants.

To qualify for a permit, an applicant shall:

1. Be an owner of the food establishment or an officer of the legal ownership;

2. Comply with the requirements of this chapter; and

3. As specified under 12VAC5-421-3820, agree to allow access to the food establishment and to provide required information.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3700. Contents of the application.

The application shall include:

1. The name, mailing address, telephone number, and signature of the person applying for the permit and the name, mailing address, and location of the food establishment;

2. Information specifying whether the food establishment is owned by an association, corporation, individual, partnership, or other legal entity;

3. A statement specifying whether the food establishment:

a. Is mobile or stationary, and temporary or permanent; and

b. Is an operation that includes one or more of the following:

(1) Prepares, offers for sale, or serves time/temperature control for safety food:

(a) Only to order upon a consumer's request;

(b) In advance in quantities based on projected consumer demand and discards food that is not sold or served at an approved frequency; or

(c) Using time as the public health control as specified under 12VAC5-421-850;

(2) Prepares time/temperature control for safety food in advance using a food preparation method that involves two or more steps which may include combining time/temperature control for safety food ingredients; cooking; cooling; reheating; hot or cold holding; freezing; or thawing;

(3) Prepares food as specified under subdivision 3 b (2) of this section for delivery to and consumption at a location off the premises of the food establishment where it is prepared;

(4) Prepares food as specified under subdivision 3 b (2) of this section for service to a highly susceptible population;

(5) Prepares only food that is not time/temperature control for safety food; or

(6) Does not prepare, but offers for sale only prepackaged food that is not time/temperature control for safety food;

4. The name, title, address, and telephone number of the person directly responsible for the food establishment;

5. The name, title, address, and telephone number of the person who functions as the immediate supervisor of the person specified under subdivision 4 of this section such as the zone, district, or regional supervisor;

6. The names, titles, and addresses of:

a. The persons comprising the legal ownership as specified under subdivision 2 of this section including the owners and officers; and

b. The local resident agent if one is required based on the type of legal ownership;

7. A statement signed by the applicant that:

a. Attests to the accuracy of the information provided in the application; and

b. Affirms that the applicant will:

(1) Comply with this chapter; and

(2) Allow the department access to the establishment as specified under 12VAC5-421-3820 and to the records specified under 12VAC5-421-440 and 12VAC5-421-2330 and subdivision 4 of 12VAC5-421-3630; and

8. Other information required by the department.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3710. New, converted, or remodeled establishments.

For food establishments that are required to submit plans as specified under 12VAC5-421-3600 the department shall issue a permit to the applicant after:

1. A properly completed application is submitted;

2. Any required fee is submitted;

3. The required plans, specifications, and information are reviewed and approved; and

4. A preoperational inspection as specified in 12VAC5-421-3650 shows that the establishment is built or remodeled in accordance with the approved plans and specifications and that the establishment is in compliance with this chapter.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3720. Existing establishments, permit renewal, change of ownership, or termination.

A. The department may renew a permit for an existing food establishment or may issue a permit to a new owner of an existing food establishment after a properly completed application is submitted, reviewed, and approved, any fees are paid, and an inspection shows that the establishment is in compliance with this chapter.

B. An existing food establishment shall notify the department in writing of a change of legal ownership or when business operations have terminated. Such notice shall be submitted in writing to the department at least 30 days prior to the legal ownership transfer or termination of business operation.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3730. Denial of application for permit, notice.

If an application for a permit to operate is denied, the department shall provide the applicant with a notice that includes:

1. The specific reasons and chapter citations for the permit denial;

2. The actions, if any, that the applicant must take to qualify for a permit; and

3. Advisement of the applicant's right of appeal and the process and time frames for appeal that are provided in law.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3740. Responsibilities of the  department.

A. At the time a permit is first issued, the department shall provide to the permit holder a copy (or opportunity to obtain a copy) of this chapter so that the permit holder is notified of the compliance requirements and the conditions of retention, as specified under 12VAC5-421-3750, that are applicable to the permit.

B. Failure to provide the information specified in subsection A of this section does not prevent the department from taking authorized action or seeking remedies if the permit holder fails to comply with this chapter or an order, warning, or directive of the department.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3750. Responsibilities of the permit holder.

In order to retain a permit issued by the department, the permit holder shall:

1. Post the permit in a location in the food establishment that is conspicuous to consumers;

2. Comply with the provisions of this chapter including the conditions of a granted variance as specified under 12VAC5-421-3590 and 12VAC5-421-3595, and approved plans as specified under 12VAC5-421-3610;

3. If a food establishment is required under 12VAC5-421-3620 to operate under a HACCP plan, comply with the plan as specified under 12VAC5-421-3595;

4. Immediately contact the department to report an illness of a food employee or conditional employee as specified under 12VAC5-421-80 B;

5. Immediately discontinue operations and notify the department if an imminent health hazard may exist as specified under 12VAC5-421-3910;

6. Allow representatives of the department access to the food establishment as specified under 12VAC5-421-3820;

7. Replace existing facilities and equipment specified in 12VAC5-421-3510 with facilities and equipment that comply with this chapter if:

a. The department directs the replacement because the facilities and equipment constitute a public health hazard or nuisance or no longer comply with the criteria upon which the facilities and equipment were accepted;

b. The department directs the replacement of the facilities and equipment because of a change of ownership; or

c. The facilities and equipment are replaced in the normal course of operation;

8. Comply with directives of the department including time frames for corrective actions specified in inspection reports, notices, orders, warnings, and other directives issued by the department in regard to the permit holder's food establishment or in response to community emergencies;

9. Accept notices issued and served by the department according to law; and

10. Be subject to the administrative, civil, injunctive, and criminal remedies authorized in law for failure to comply with this chapter or a directive of the department, including time frames for corrective actions specified in inspection reports, notices, orders, warnings, and other directives.

11. Notify customers that a copy of the most recent establishment inspection report is available upon request by:

a. Posting a sign or placard in a location in the food establishment that is conspicuous to customers; or

b. By another method acceptable to the department.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 26, Issue 7, eff. January 1, 2010; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3760. Permits not transferable.

A permit shall not be transferred from one person to another person, from one food establishment to another, or from one type of operation to another if the food operation changes from the type of operation specified in the application as specified under 12VAC5-421-3700 and the change in operation is not approved.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007.

12VAC5-421-3770. Summary suspension of a permit.

The director may summarily suspend a permit to operate a food establishment if the director finds the continued operation constitutes a substantial and imminent threat to the public health. Upon receipt of such notice that a permit is suspended, the permit holder shall cease food operations immediately and begin corrective action.

Whenever a permit is suspended, the holder of the permit or the person in charge shall be notified in writing by mail or by hand delivery. Upon receipt of notice that the permit is immediately suspended, the former permit holder shall be given an opportunity for an informal fact-finding conference in accordance with § 2.2-4019 of the Code of Virginia. The request for an informal fact-finding conference shall be in writing. The written request shall be filed with the local department by the former holder of the permit. If written request for an informal fact-finding conference is not filed within 10 working days, the suspension is sustained. Each holder of a suspended permit shall be afforded an opportunity for an informal fact-finding conference, within three working days of receipt of a request for the informal fact-finding conference. The director may end the suspension at any time if the reasons for the suspension no longer exist.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3780. Revocation of a permit.

The director may, after conducting an informal fact-finding conference in accordance with § 2.2-4019 of the Code of Virginia, revoke a permit for violation of any of the requirements of this part.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3790. Application after revocation.

Any person whose permit has been revoked, may apply for a new permit by following the procedures of this part outlined in 12VAC5-421-3670 through 12VAC5-421-3700.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

Article 4
Inspection and Correction of Violations

12VAC5-421-3800. Periodic inspection.

Food establishments shall be inspected by the department. Inspections of the food establishments shall be performed as often as necessary for the enforcement of this chapter in accordance with the following:

1. Except as specified in subdivisions 2 and 3 of this section, the department shall inspect a food establishment at least once every six months.

2. The department may increase the interval between inspections beyond six months if:

a. The food establishment is fully operating under an approved and validated HACCP plan as specified under 12VAC5-421-3595 and 12VAC5-421-3630;

b. The food establishment is assigned a less frequent inspection frequency based on an established risk-based inspection schedule uniformly applied throughout the Commonwealth and updated annually upon reissuance of the annual permit; or

c. The establishment's operation involves only coffee service and other unpackaged or prepackaged food that is not time/temperature control for safety food, such as carbonated beverages and snack food such as chips, nuts, popcorn, and pretzels.

3. The department shall inspect a temporary food establishment during its permit period, unless the department develops a written risk-based plan for adjusting the frequency of inspections of temporary food establishments that is uniformly applied throughout the Commonwealth.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3810. Performance-based and risk-based inspections.

Within the parameters specified in 12VAC5-421-3800, the department shall prioritize the conducting of more frequent inspections based upon its assessment of a food establishment's history of compliance with this chapter and the establishment's potential as a vector of foodborne illness by evaluating:

1. Past performance for nonconformance with this chapter or HACCP plan requirements that are priority items or priority foundation items;

2. Past performance for numerous or repeat violations of this chapter or HACCP plan requirements that are core items;

3. Past performance for complaints investigated and found to be valid;

4. The hazards associated with the particular foods that are prepared, stored, or served;

5. The type of operation including the methods and extent of food storage, preparation, and service;

6. The number of people served; and

7. Whether the population served is a highly susceptible population.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3815. Competency of environmental health specialists.

A. An authorized representative of the commissioner who inspects a food establishment or conducts plan review for compliance with this chapter shall have the knowledge, skills, and ability to adequately perform the required duties. For the purposes of this section, competency shall be demonstrated when an environmental health specialist meets the training and standardization requirements as determined by the department.

B. The department shall ensure that authorized representatives who inspect a food establishment or conduct plan review for compliance with this chapter have access to training and continuing education as needed to properly identify violations and apply this chapter.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 24, Issue 2, eff. October 16, 2007; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3820. Access allowed at reasonable times after due notice.

After the department presents official credentials and provides notice of the purpose of and an intent to conduct an inspection, the person in charge shall allow the department to determine if the food establishment is in compliance with this chapter by allowing access to the establishment, allowing inspection, and providing information and records specified in this chapter and to which the department is entitled according to law, during the food establishment's hours of operation and other reasonable times.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3830. Refusal, notification of right to access, and final request for access.

If a person denies access to the department, the department shall:

1. Inform the person that:

a. The permit holder is required to allow access to the department as specified under 12VAC5-421-3820,

b. Access is a condition of the acceptance and retention of a food establishment permit to operate as specified under subdivision 6 of 12VAC5-421-3750 , and

c. If access is denied, the commissioner or his designee may apply to an appropriate circuit court for an inspection warrant authorizing such inspection, testing, or taking samples for testing as provided in Chapter 24 (§ 19.2-393 et seq.) of Title 19.2 of the Code of Virginia; and

2. Make a final request for access.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3840. Refusal, reporting.

If after the department presents credentials and provides notice as specified under 12VAC5-421-3820, explains the authority upon which access is requested, and makes a final request for access as specified in 12VAC5-421-3830, the person in charge continues to refuse access, the department shall provide details of the denial of access on an inspection report form.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3850. Inspection warrants.

If denied access to a food establishment for an authorized purpose and after complying with 12VAC5-421-3830, the commissioner or his designee may apply to an appropriate circuit court for an inspection warrant authorizing such inspection, testing, or taking samples for testing as provided in Chapter 24 (§ 19.2-393 et seq.) of Title 19.2 of the Code of Virginia.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-421-3860. Documenting information and observations.

The department shall document on an inspection report form:

1. Administrative information about the food establishment's legal identity, street and mailing addresses, type of establishment and operation as specified under 12VAC5-421-3700, inspection date, and other information such as type of water supply and sewage disposal, status of the permit, and personnel certificates that may be required; and

2. Specific factual observations of violative conditions or other deviations from this chapter that require correction by the permit holder including:

a. Failure of the person in charge to demonstrate the knowledge of foodborne illness prevention, application of HACCP principles, and the requirements of this chapter specified under 12VAC5-421-60;

b. Failure of food employees, conditional employees, and the person in charge to report a disease or medical condition as specified under 12VAC5-421-80 B and D;

c. Nonconformance with priority , priority foundation, or core items of this chapter;

d. Failure of the appropriate food employees to demonstrate their knowledge of, and ability to perform in accordance with, the procedural, monitoring, verification, and corrective action practices required by the department as specified under 12VAC5-421-60;

e. Failure of the person in charge to provide records required by the department for determining conformance with a HACCP plan as specified under subdivision 4 f of 12VAC5-421-3630; and

f. Nonconformance with critical limits of a HACCP plan.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 26, Issue 7, eff. January 1, 2010; Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3870. Specifying time frame for corrections.

The department shall specify on the inspection report form the time frame for correction of the violations as specified under 12VAC5-421-3910, 12VAC5-421-3930, and 12VAC5-421-3950.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3880. Issuing report and obtaining acknowledgment of receipt.

At the conclusion of the inspection and according to law, the department shall provide a copy of the completed inspection report and the notice to correct violations to the permit holder or to the person in charge, and request a signed acknowledgment of receipt.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3890. Refusal to sign acknowledgment.

The department shall:

1. Inform a person who declines to sign an acknowledgment of receipt of inspectional findings as specified in 12VAC5-421-3880 that:

a. An acknowledgment of receipt is not an agreement with findings,

b. Refusal to sign an acknowledgment of receipt will not affect the permit holder's obligation to correct the violations noted in the inspection report within the time frames specified, and

c. A refusal to sign an acknowledgment of receipt is noted in the inspection report and conveyed to the department's historical record for the food establishment; and

2. Make a final request that the person in charge sign an acknowledgment receipt of inspectional findings.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3900. Public records.

Except as specified in 12VAC5-421-3640, the department shall treat the inspection report as a public record and shall make it available for disclosure to a person who requests it as provided in law.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3910. Imminent health hazard, ceasing operations and reporting.

A. Except as specified in subsections B and C of this section, a permit holder shall immediately discontinue operations and notify the department if an imminent health hazard may exist because of an emergency such as a fire, flood, extended interruption of electrical or water service, sewage backup, misuse of poisonous or toxic materials, onset of an apparent foodborne illness outbreak, gross insanitary occurrence or condition, or other circumstance that may endanger public health.P

B. A permit holder need not discontinue operations in an area of an establishment that is unaffected by the imminent health hazard.

C. Considering the nature of the potential hazard involved and the complexity of the corrective action needed, the department may agree to continuing operations in the event of an extended interruption of electrical or water service if:

1. A written emergency operating plan has been approved by the department;

2. Immediate corrective action is taken to eliminate, prevent, or control any food safety risk and imminent health hazard associated with the electrical or water service interruption; and

3. The department is informed upon implementation of the written emergency operating plan.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3920. Resumption of operations.

If operations are discontinued as specified under 12VAC5-421-3910 or otherwise according to law, the permit holder shall obtain approval from the department before resuming operations.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3930. Timely correction.

A. Except as specified in subsection B of this section, a permit holder shall at the time of inspection correct a priority item or priority foundation item in this chapter and implement corrective actions for a HACCP plan provision that is not in compliance with its critical limit. Pf

B. Considering the nature of the potential hazard involved and the complexity of the corrective action needed, the department may agree to or specify a longer timeframe, not to exceed:

1. 72 hours after the inspection for the permit holder to correct priority items; or

2. 10 calendar days after the inspection for the permit holder to correct priority foundation items or HACCP plan deviations.

C. In the case of temporary food establishments, priority items shall be corrected within a maximum of 24 hours after inspection.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3940. Verification and documentation of correction.

A. After observing at the time of inspection a correction of a priority item , priority foundation item, or a HACCP plan deviation, the department shall enter the observation and information about the corrective action on the inspection report.

B. As specified under 12VAC5-421-3930 B, after receiving notification that the permit holder has corrected a priority item, priority foundation item, or a HACCP plan deviation, or at the end of the specified period of time, the department shall verify correction, document the information on an inspection report, and enter the report in the department records.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3950. Core item, timeframe for correction.

A. Except as specified in subsection B of this section, the permit holder shall correct core items by a date and time agreed to or specified by the department but no later than 90 calendar days after the inspection.

B. The department may approve a compliance schedule that extends beyond the time limits specified under subsection A of this section if a written schedule of compliance is submitted by the permit holder and no health hazard exists or will result from allowing an extended schedule for compliance.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3960. (Repealed.)

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 32, Issue 22, eff. July 12, 2016; repealed, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3961. Hold order, justifying conditions, and removal of food.

Upon written notice to the owner, permit holder, or person in charge, the department may place a hold order on food that:

1. Originated from an unapproved source;

2. May be unsafe, adulterated, or not honestly presented; or

3. Is not otherwise in compliance with this chapter.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3961. Hold order, justifying conditions, and removal of food.

Upon written notice to the owner, permit holder, or person in charge, the department may place a hold order on food that:

1. Originated from an unapproved source;

2. May be unsafe, adulterated, or not honestly presented; or

3. Is not otherwise in compliance with this chapter.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3961. Hold order, justifying conditions, and removal of food.

Upon written notice to the owner, permit holder, or person in charge, the department may place a hold order on food that:

1. Originated from an unapproved source;

2. May be unsafe, adulterated, or not honestly presented; or

3. Is not otherwise in compliance with this chapter.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3962. Hold order, contents.

The hold order notice shall:

1. State food subject to the order may not be used, sold, moved from the food establishment, or destroyed without a written release of the order from the department;

2. State the specific reasons for placing the food under the hold order with reference to the applicable provisions of this chapter and the hazard or adverse effect created by the observed condition;

3. Sufficiently identify the food subject to the hold order by the common name, the label information, a container description, quantity, department's tag or identification information, and location; and

4. Notify the permit holder of the right to request an informal fact-finding conference pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) within 10 calendar days of receipt of the hold order notice. Otherwise, the food under the hold order shall be destroyed by the owner, permit holder, or the person in charge.

Statutory Authority

§§ 35.1.11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3962. Hold order, contents.

The hold order notice shall:

1. State food subject to the order may not be used, sold, moved from the food establishment, or destroyed without a written release of the order from the department;

2. State the specific reasons for placing the food under the hold order with reference to the applicable provisions of this chapter and the hazard or adverse effect created by the observed condition;

3. Sufficiently identify the food subject to the hold order by the common name, the label information, a container description, quantity, department's tag or identification information, and location; and

4. Notify the permit holder of the right to request an informal fact-finding conference pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) within 10 calendar days of receipt of the hold order notice. Otherwise, the food under the hold order shall be destroyed by the owner, permit holder, or the person in charge.

Statutory Authority

§§ 35.1.11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3962. Hold order, contents.

The hold order notice shall:

1. State food subject to the order may not be used, sold, moved from the food establishment, or destroyed without a written release of the order from the department;

2. State the specific reasons for placing the food under the hold order with reference to the applicable provisions of this chapter and the hazard or adverse effect created by the observed condition;

3. Sufficiently identify the food subject to the hold order by the common name, the label information, a container description, quantity, department's tag or identification information, and location; and

4. Notify the permit holder of the right to request an informal fact-finding conference pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) within 10 calendar days of receipt of the hold order notice. Otherwise, the food under the hold order shall be destroyed by the owner, permit holder, or the person in charge.

Statutory Authority

§§ 35.1.11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3963. Hold order, official tagging of food.

A. The department shall securely place an official tag or label on the food or containers or otherwise conspicuously identity food subject to the hold order.

B. The tag or label used to identify a food subject to a hold order shall include a summary of the provisions specified in 12VAC5-421-3962 and shall be signed and dated by the department.

C. Only the department may remove hold order tags, labels, or other identification from food subject to a hold order.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3963. Hold order, official tagging of food.

A. The department shall securely place an official tag or label on the food or containers or otherwise conspicuously identity food subject to the hold order.

B. The tag or label used to identify a food subject to a hold order shall include a summary of the provisions specified in 12VAC5-421-3962 and shall be signed and dated by the department.

C. Only the department may remove hold order tags, labels, or other identification from food subject to a hold order.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3963. Hold order, official tagging of food.

A. The department shall securely place an official tag or label on the food or containers or otherwise conspicuously identity food subject to the hold order.

B. The tag or label used to identify a food subject to a hold order shall include a summary of the provisions specified in 12VAC5-421-3962 and shall be signed and dated by the department.

C. Only the department may remove hold order tags, labels, or other identification from food subject to a hold order.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3964. Hold order, food may not be used or moved.

A. Except as specified in subsection B of this section, food placed under a hold order may not be used, sold, served, or moved from the food establishment.

B. The department may allow the permit holder to store the food in an area of the food establishment if the food is protected from subsequent deterioration.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3964. Hold order, food may not be used or moved.

A. Except as specified in subsection B of this section, food placed under a hold order may not be used, sold, served, or moved from the food establishment.

B. The department may allow the permit holder to store the food in an area of the food establishment if the food is protected from subsequent deterioration.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3964. Hold order, food may not be used or moved.

A. Except as specified in subsection B of this section, food placed under a hold order may not be used, sold, served, or moved from the food establishment.

B. The department may allow the permit holder to store the food in an area of the food establishment if the food is protected from subsequent deterioration.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3965. Appeals, releasing hold order.

A. Any appeal of a hold order must be made in writing and received by the department within 10 calendar days of receipt of the hold order.

B. The department shall issue a notice of release from a hold order and shall remove hold tags, labels, or other identification from the food if the hold order is lifted.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3965. Appeals, releasing hold order.

A. Any appeal of a hold order must be made in writing and received by the department within 10 calendar days of receipt of the hold order.

B. The department shall issue a notice of release from a hold order and shall remove hold tags, labels, or other identification from the food if the hold order is lifted.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3965. Appeals, releasing hold order.

A. Any appeal of a hold order must be made in writing and received by the department within 10 calendar days of receipt of the hold order.

B. The department shall issue a notice of release from a hold order and shall remove hold tags, labels, or other identification from the food if the hold order is lifted.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3966. Destroying or denaturing food.

The department may order the permit holder to bring food under a hold order into compliance with this chapter or to destroy or denature food if:

1. Following an informal fact-finding conference held pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) the director affirms the hold order; or

2. The permit holder fails to file an appeal within 10 calendar days of receipt of the hold order notice.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3966. Destroying or denaturing food.

The department may order the permit holder to bring food under a hold order into compliance with this chapter or to destroy or denature food if:

1. Following an informal fact-finding conference held pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) the director affirms the hold order; or

2. The permit holder fails to file an appeal within 10 calendar days of receipt of the hold order notice.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3966. Destroying or denaturing food.

The department may order the permit holder to bring food under a hold order into compliance with this chapter or to destroy or denature food if:

1. Following an informal fact-finding conference held pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) the director affirms the hold order; or

2. The permit holder fails to file an appeal within 10 calendar days of receipt of the hold order notice.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3970. Enforcement of regulation.

A. The department is responsible for the implementation and enforcement of this chapter.

B Pursuant to the authority granted in §§ 32.1-26 and 35.1-6 of the Code of Virginia, the commissioner may issue orders to require any owner or permit holder or other person to comply with the provisions of this chapter. The order may require the following:

1. The immediate cessation and correction of the violation;

2. Appropriate remedial action to ensure that the violation does not continue or recur;

3. The submission of a plan to prevent future violations;

4. The submission of an application for a variance; and

5. Any other corrective action deemed necessary for proper compliance with the regulations.

C. The commissioner may act as the agent of the board to enforce all effective orders and this chapter. Should any owner or permit holder fail to comply with any effective order or this chapter, the commissioner may:

1. Institute a proceeding to revoke the owner's or permit holder's permit in accordance with 12VAC5-421-3780;

2. Request the attorney for the Commonwealth to bring a criminal action;

3. Request the Attorney General to bring an action for civil penalty, injunction, or other appropriate remedy; or

4. Do any combination of the above.

D. Nothing contained in this section shall be interpreted to require the commissioner to issue an order prior to seeking enforcement of any regulations or statute through an injunction, mandamus or criminal prosecution.

E. Proceedings before the commissioner or his designee shall include any of the following forms depending on the nature of the controversy and the interests of the parties involved.

1. Informal fact-finding conferences. An informal fact-finding conference is a meeting with a district or local health department with the director presiding and held in conformance with § 2.2-4019 of the Code of Virginia.

2. Adjudicatory hearing. The adjudicatory hearing is a formal, public adjudicatory proceeding before a hearing officer as defined by § 2.2-4001 of the Code of Virginia, and held in conformance with § 2.2-4020 of the Code of Virginia.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Co de of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 32, Issue 22, eff. July 12, 2016; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-3980. Request for informal fact-finding conference.

A request for an informal fact-finding conference shall be made by sending the request in writing to the district or local health department in the locality where the food establishment is located. Requests for an informal fact-finding conference shall cite the reason or reasons for the request and shall cite the section or sections of this chapter involved and must be received within 30 days of the decision by the department that lead to the request.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 32, Issue 22, eff. July 12, 2016.

12VAC5-421-3990. (Repealed.)

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; repealed, Virginia Register Volume 32, Issue 22, eff. July 12, 2016.

12VAC5-421-4000. Appeals.

A. Any appeal from a denial of a permit to operate a food establishment must be made in writing and received by the department within 30 days after service of the denial.

B. Pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) an aggrieved owner or permit holder may appeal a final case decision of the commissioner to an appropriate circuit court.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 32, Issue 22, eff. July 12, 2016.

12VAC5-421-4010. (Repealed.)

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; repealed, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-4020. Compliance with the Uniform Statewide Building Code.

All buildings or structures utilized as food establishments constructed prior to the effective date of the Virginia Uniform Statewide Building Code shall be maintained in conformance with the Virginia Fire Safety Law or other code in effect at the time of construction.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-4030. Local ordinance superseded; exception.

The regulations of the board shall supersede all local ordinances regulating restaurants other than those adopted pursuant to the provisions of § 35.1-26 of the Code of Virginia, except that any locality may adopt ordinances regarding the sale, preparation, and handling of food provided such ordinances are equivalent to, or more stringent in regard to public health than, the applicable provisions of Title 35.1 and the regulations of the board. Where local ordinances prevail, local permits may be issued as required by the local ordinances. However, this does not preclude the requirement to issue a department permit before providing food services for the public.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.

12VAC5-421-4035. (Repealed.)

Historical Notes

Derived from Virginia Register Volume 24, Issue 2, eff. October 16, 2007; amended, Virginia Register Volume 35, Issue 1, eff. October 3, 2018; repealed, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-4040. Investigation and control, obtaining information: personal history of illness, medical examination, and specimen analysis.

The department shall act when it has reasonable cause to believe that a food employee or conditional employee has possibly transmitted disease; may be infected with a disease in a communicable form that is transmissible through food; may be a carrier of infectious agents that cause a disease that is transmissible through food; or is affected with a boil, an infected wound, or acute respiratory infection, by:

1. Securing a confidential medical history of the employee suspected of transmitting disease or making other investigations as deemed appropriate; and

2. Requiring appropriate medical examinations, including collection of specimens for laboratory analysis, of a suspected food employee or conditional employee.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 26, Issue 7, eff. January 1, 2010; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-4050. Restriction or exclusion of food employee, or summary suspension of permit.

Based on the findings of an investigation related to a food employee or conditional employee who is suspected of being infected or diseased, the department may issue an order to the suspected food employee, conditional employee, or permit holder instituting one or more of the following control measures:

1. Restricting the food employee or conditional employee;

2. Excluding the food employee or conditional employee; or

3. Closing the food establishment by summarily suspending a permit to operate in accordance with law.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 26, Issue 7, eff. January 1, 2010; Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-4060. Restriction or exclusion order: warning or hearing not required, information required in order.

Based on the findings of the investigation as specified in 12VAC5-421-4040 and to control disease transmission, the department may issue an order of restriction or exclusion to a suspected food employee or the permit holder without prior warning, notice of a hearing, or a hearing if the order:

1. States the reasons for the restriction or exclusion that is ordered;

2. States the evidence that the food employee or permit holder shall provide in order to demonstrate that the reasons for the restriction or exclusion are eliminated;

3. States that the suspected food employee or the permit holder may request an appeal hearing by submitting a timely request as provided in law; and

4. Provides the name and address of the department representative to whom a request for an appeal hearing may be made.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.

12VAC5-421-4070. Release of food employee from restriction or exclusion.

The regulatory authority shall release a food employee, or conditional employee from restriction or exclusion according to law and the conditions specified under 12VAC5-421-100.

Statutory Authority

§§ 35.1-11 and 35.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 26, Issue 7, eff. January 1, 2010.

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