Administrative Code

Virginia Administrative Code
6/15/2024

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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