N.M. Admin. Code § 7.6.2.8

Current through Register Vol. 35, No. 21, November 5, 2024

Section 7.6.2.8 - FOOD ESTABLISHMENT REQUIREMENTS

A. Adoption of food code. Except as otherwise provided, the 2017 United States food and drug administration model food code and the supplement to the 2017 food code are hereby adopted and incorporated in their entirety.

B. Modifications to food code. Except as otherwise provided, the following modifications are made to the incorporated food code.

(1) 2-102.12 Certified food protection manager.

(a) At least one employee per food establishment that has supervisory and management responsibility and the authority to direct and control food preparation and service shall be a certified food protection manager who has shown proficiency of required information through passing a test that is part of an accredited program.

(b) This section applies to food establishments, temporary food establishments, and mobile food establishments.

(c) This section does not apply to certain types of food establishments deemed by the regulatory authority to pose minimal risk of causing, or contributing to, foodborne illness based on the nature of the operation and extent of food preparation.

(d) A single certified food protection manager may be responsible for more than a single food establishment, provided that a variance is approved by the regulatory authority as specified in Paragraph (12) of Subsection B of 7.6.2.8 NMAC and Section 8-103.11 of the food code.

(e) The effective date of Paragraph (1) of Subsection B of 7.6.2.8 NMAC shall be three months from the effective date of 7.6.2.8 NMAC.

(2) 2-102.20 Food protection manager certification

(a) A person in charge who demonstrates knowledge by being a food protection manager that is certified by a food protection manager certification program that is evaluated and listed by a Conference for Food Protection-recognized accrediting agency as conforming to the conference for food protection standards for accreditation of food protection manager certification programs is deemed to comply with Paragraph 2-102.11(B).

(b) A food establishment that has an employee that is certified by a food protection manager certification program that is evaluated and listed by a Conference for Food Protection-recognized accrediting agency as conforming to the Conference for Food Protection Standards for Accreditation of Food Protection Manager Certification Programs is deemed to comply with Section 2102.12.

(3) 3-201.15 Molluscan shellfish.

(a) Molluscan shellfish shall be obtained from sources according to law and the requirements specified in the United States (U.S.) DOH and human services, public health service, FDA, national shellfish sanitation program guide for the control of molluscan shellfish.

(b) Molluscan shellfish shall be from sources that are listed in the interstate certified shellfish shippers list.

(4) 3-202.18 Shellstock identification.

(a) Shellstock shall be obtained in containers bearing legible source identification tags or labels that are affixed by the harvester or dealer that depurates, ships, or reships the shellstock, as specified in the national shellfish sanitation program guide for the control of molluscan shellfish, and that list:

(i) except as specified under Subparagraph (c) of Paragraph 3 of Subsection B of 7.6.2.8 NMAC, on the harvester's tag or label, the following information in the following order: the harvester's identification number that is assigned by the shellstock control authority, the date of harvesting, the most precise identification of the harvest location or aquaculture site that is practicable based on the system of harvest area designations that is in use by the shellstock control authority and including the abbreviation of the name of the state or country in which the shellfish are harvested, the type and quantity of shellfish, the following statement in bold, capitalized type: "this tag is required to be attached until container is empty or retagged and thereafter kept on file for 90 days";

(ii) except as specified in Subparagraph (d) of Paragraph (3) of Subsection B of 7.6.2.8 NMAC, on each dealer's tag or label, the following information in the following order: the dealer's name and address, the certification number assigned by the shellstock control authority, the original shipper's certification number including the abbreviation of the name of the state or country in which the shellfish are harvested, the same information as specified for a harvester's tag under Item (i) of Subparagraph (a) of Paragraph (3) of Subsection B of 7.6.2.8 NMAC, and the following statement in bold, capitalized type: "this tag is required to be attached until container is empty and thereafter kept on file for 90 days."

(b) A container of shellstock that does not bear a tag or label or that bears a tag or label that does not contain all the information as specified under Subparagraph (a) of Paragraph (3) of Subsection B of 7.6.2.8 NMAC shall be subject to a hold order or seizure and destruction in accordance with Section 25-2-6 NMSA 1978.

(c) If a place is provided on the harvester's tag or label for a dealer's name, address, and certification number, the dealer's information shall be listed first.

(d) If the harvester's tag or label is designed to accommodate each dealer's identification as specified under Item (ii) of Subparagraph (a) of Paragraph (3) of Subsection B of 7.6.2.8 NMAC, individual dealer tags or labels need not be provided.

(5) 3-502.11 Variance requirement. A food establishment shall obtain a variance from the regulatory authority as specified in Sections 8-103.10 and 8-103.11 of the food code before:

(a) smoking food as a method of food preservation rather than as a method of flavor enhancement;

(b) curing food;

(c) using food additives or adding components such as vinegar:

(i) as a method of food preservation rather than as a method of flavor enhancement; or

(ii) to render a food so that it is not TCS food;

(d) packaging TCS food using a reduced oxygen packaging method except where the growth of and toxin formation by clostridium botulinum and the growth of listeria monocytogenes are controlled as specified under Section 3-502.12 of the food code;

(e) operating a molluscan shellfish life-support system display tank used to store or display shellfish that are offered for human consumption;

(f) preparing food by another method that is determined by the regulatory authority to require a variance; or

(g) sprouting seeds or beans.

(6) 4-205.10 Food equipment, certification and classification.

(a) Food equipment, including new and replacement equipment, shall be certified or classified for sanitation by an American national standards institute (ANSI) - accredited certification program. Such accredited programs include, but are not limited to, the national sanitation foundation (NSF), underwriters laboratories (UL), intertek ETL, or the Canadian standards administration (CSA).

(b) Food equipment that is certified or classified for sanitation by an ANSI - accredited certification program is deemed to comply with Parts 4-1 and 4-2 of the Food Code.

(7) 4-301.11 Cooling, heating, holding capacities and use.

(a) Equipment for cooling and heating food, and holding cold and hot food, shall be sufficient in number and capacity to provide food temperatures as specified under Chapter 3 of the food code.

(b) Steam tables, slow cookers, and other hot holding devices shall not be used in cooking, heating or reheating food as specified under Sections 3-401 and 3-403 of the food code.

(8) 5-102.11 Standards. Except as specified under Section 5-102.12 of the food code:

(a) Water from a public water system shall meet the construction and drinking water quality standards specified in 20.7.10 NMAC; and

(b) Water from a non-public water system shall meet:

(i) the construction requirements and drinking water quality standards of a non-community water system as specified in 20.7.10 NMAC; and

(ii) the drinking water source setback requirements as specified in 20.7.3 NMAC.

(9) 5-102.13 Sampling. Except when used as specified under Section 5-102.12 of the Food Code, water from a non-public water system shall meet the sampling requirements of a non-community water system as specified in 20.7.10 NMAC.

(10) 5-203.13 Service sink.

(a) Except as specified in Paragraph (C) of Section 5-203.13 of the food code, at least one service sink or one curbed cleaning facility equipped with a floor drain shall be provided and conveniently located for the cleaning of mops or similar wet floor cleaning tools and for the disposal of mop water and similar liquid waste.

(b) Toilets and urinals may not be used as a service sink for the disposal of mop water and similar liquid waste.

(c) When no health hazard will exist, the regulatory authority may approve an alternative method.

(11) 6-501.115 Prohibiting animals.

(a) Except as specified in Subparagraphs (b) and (c) of Paragraph (10) of Subsection B of 7.6.2.8 NMAC, live animals may not be allowed on the premises of a food establishment.

(b) Live animals may be allowed in the following situations if the contamination of food, clean equipment, utensils, and linens, and unwrapped single-service and single-use articles cannot result:

(i) edible fish or decorative fish in aquariums, shellfish or crustaceans on ice or under refrigeration, and shellfish and crustaceans in display tank systems;

(ii) patrol dogs accompanying police or security officers in offices and dining, sales, and storage areas, and sentry dogs running loose in outside fenced areas;

(iii) in areas that are not used for food preparation and that are usually open for customers, such as dining and sales areas, service animals that are controlled by the disabled employee or person, if a health or safety hazard will not result from the presence or activities of the service animal;

(iv) pets in the common dining areas of institutional care facilities such as nursing homes, assisted living facilities, group homes, or residential care facilities at times other than during meals if effective partitioning and self-closing doors separate the common dining areas from food storage or food preparation areas, condiments, equipment, and utensils are stored in enclosed cabinets or removed from the common dining areas when pets are present, and dining areas including tables, countertops, and similar surfaces are effectively cleaned before the next meal service;

(v) in areas that are not used for food preparation, storage, sales, display, or dining, in which there are caged animals or animals that are similarly confined, such as in a variety store that sells pets or a tourist park that displays animals; and

(vi) pet dogs in outdoor dining areas, if allowed by the food establishment, and pet dogs are excluded from any area where food is prepared, pet dogs are kept on a leash and under reasonable control at all times, pet dogs are not allowed on chairs, consumer's laps, tables, or other furnishings, consumers shall not feed pet dogs on food establishment tableware, and a sign approved by the regulatory authority is posted at each entrance to the designated outdoor dining area stating the conditions under which pet dogs are allowed and alerting patrons that pet dogs are allowed and may be present.

(c) Live or dead fish bait may be stored if contamination of food, clean equipment, utensils, and linens, and unwrapped single-service and single-use articles cannot result.

(12) 8-103.10 Modifications and waivers.

(a) The regulatory authority may grant a variance by modifying or waiving the requirements of the food code if in the opinion of the regulatory authority a health hazard or nuisance will not result from the variance. If a variance is granted, the regulatory authority shall retain the information specified under Section 8-103.11 of the food code in its records for the food establishment.

(b) The regulatory authority shall grant the variance, grant the variance subject to conditions, or deny the variance within 15 working days following the receipt of the variance request.

(13) 8-201.11 When plans are required. Except for temporary food establishments, a permit applicant or permit holder shall submit to the regulatory authority properly prepared plans and specifications for review and approval at least 30 calendar days before:

(a) the construction of a food establishment;

(b) the conversion of an existing structure for use as a food establishment;

(c) the remodeling of a food establishment or a change of type of food establishment or food operation as specified under Subparagraph (c) of Paragraph (17) of Subsection B of 7.6.2 NMAC if the regulatory authority determines that plans and specifications are necessary to ensure compliance with the food code; or

(d) opening or changing ownership of an existing food establishment, if current plans and specifications are not on file with the regulatory authority.

(14) 8-301.11 Prerequisite for operation.

(a) A person may not operate a food establishment or servicing area without a valid permit to operate issued by the regulatory authority.

(b) Except as specified in Subparagraphs (c) and (d) of Paragraph (13) of Subsection B of 7.6.2 NMAC, when more than a single food establishment is operated on the premises, each one shall be separately permitted.

(c) Bars operating in conjunction with a food establishment do not require a separate permit.

(d) A food establishment used as a servicing area does not require a separate permit.

(e) Prior to the issuance of a permit or the renewal of a permit, the regulatory authority shall make inspections of the food establishment or food processing plant as it deems necessary.

(15) 8-302.11 Submission 30 calendar days before proposed opening. An applicant shall submit an application for a permit at least 30 calendar days before the date planned for opening a food establishment, mobile food establishment, food processing plant, or home-based food processing operation.

(16) 8-302.13 Qualifications and responsibilities of applicants. To qualify for a permit, an applicant shall:

(a) be an owner of the food establishment or an officer of the legal ownership;

(b) comply with the requirements of 7.6.2 NMAC;

(c) as specified under Paragraph (21) of Subparagraph B of 7.6.2.8 NMAC, agree to allow access to the food establishment and to provide required information; and

(d) pay the applicable permit fees when approval to open is granted by the regulatory authority.

(17) 8-302.14 Contents of the application. The application shall include:

(a) 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;

(b) information specifying whether the food establishment is owned by an association, corporation, individual, partnership, or other legal entity;

(c) a statement specifying whether the food establishment:

(i) is mobile or stationary and temporary or permanent;

(ii) prepares, offers for sale, or serves time/temperature control for safety food only to order upon a consumer's request, or in advance in quantities based on projected consumer demand and discards food that is not sold or served at an approved frequency, or using time as the public health control as specified under Section 3-501.19 of the food code;

(iii) 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;

(iv) prepares food as specified under Item (ii) of Subparagraph (c) of Paragraph (16) of Subparagraph B of 7.6.2.8 NMAC for delivery to and consumption at a location off the premises of the food establishment where it is prepared;

(v) prepares food as specified under Item (ii) of Subparagraph (c) of Paragraph (16) of Subparagraph B of 7.6.2.8 NMAC for service to a highly susceptible population;

(vi) prepares only food that is not time/temperature control for safety food;

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

(d) the name, title, address, and telephone number of the person directly responsible for the food establishment;

(e) the name, title, address, and telephone number of the person who functions as the immediate supervisor of the person specified under Subparagraph (d) of Paragraph (16) of Subsection B of 7.6.2.8 NMAC, such as the zone, district, or regional supervisor;

(f) the names, titles, and addresses of the persons comprising the legal ownership as specified under Subparagraph (b) of Paragraph (16) of Subsection B of 7.6.2.8 NMAC, including the owners and officers, and the local resident agent if one is required based on the type of legal ownership;

(g) a statement signed by the applicant that attests to the accuracy of the information provided in the application and affirms that the applicant will comply with the food code, and allow the regulatory authority access to the food establishment as specified under Subparagraph (a) of Paragraph (20) of Subsection B of 7.6.2.8 NMAC and to the records specified under Sections 3-203.12 and 5-205.13 of the food code and Subparagraph (6) of Paragraph (D) of Section 8-201.14 of the food code; and

(h) other information required by the regulatory authority.

(18) 8-303.20 Existing establishments, permit renewal, and change of ownership.

(a) The regulatory authority may renew a permit for an existing food establishment upon submission of a renewal form provided by the regulatory authority and the required fee(s) as specified in Roman numerals (i) and (ii) of Subparagraph (a) of Paragraph (3) of Subsection D of 7.6.2.8 prior to the expiration date of the permit. Permit renewals that are not submitted before the expiration date shall be assessed a late fee as specified in Subparagraph (c) of Paragraph (3) of Subsection D of 7.6.2.8, regardless of whether a permit fee is required.

(b) The regulatory authority may issue a permit to a new owner of an existing food establishment, mobile food establishment, servicing area, or food processing plant upon completion of requirements as specified in Paragraph (13) of Subsection B of 7.6.2.8 and Paragraph (15) of Subsection B of 7.6.2.8, and an inspection shows it is in compliance with 7.6.2 NMAC.

(19) 8-401.10 Establishing inspection interval.

(a) Except as specified in Subparagraph (b) of Paragraph (18) of Subsection B of 7.6.2.8 NMAC, the regulatory authority shall inspect a food establishment, mobile food establishment, food processing plant, or home-based food processing operation at least annually to determine compliance with the Food Service Sanitation Act, the New Mexico Food Act, and 7.6.2 NMAC.

(b) The regulatory authority may periodically inspect throughout its permit period a temporary food establishment that prepares, sells, or serves unpackaged time/temperature control for safety food and that:

(i) has improvised rather than permanent facilities or equipment for accomplishing functions such as handwashing, food preparation and protection, food temperature control, warewashing, providing drinking water, waste retention and disposal, and insect and rodent control; or

(ii) has inexperienced food employees.

(c) When an inspection conducted by the regulatory authority reveals a violation, or repeat violation of priority items of 7.6.2 NMAC and a re-inspection is scheduled by the regulatory authority, a re-inspection penalty fee shall be assessed by the regulatory authority and paid by the operator as specified in Subparagraph (d) of Paragraph (3) of Subsection D of 7.6.2.8 NMAC.

(20) 8-401.20 Performance- and risk-based. The regulatory authority shall prioritize, and conduct more frequent inspections based upon its assessment of a food establishment's history of compliance with the food code and the establishment's potential as a vector of foodborne illness by evaluating:

(a) past performance, for nonconformance with code or HACCP plan requirements that are priority items or priority foundation items;

(b) past performance, for numerous or repeat violations of Food Code or HACCP plan requirements that are core items;

(c) past performance, for complaints investigated and found to be valid;

(d) the hazards associated with the particular foods that are prepared, stored, or served;

(e) the type of operation including the methods and extent of food storage, preparation, and service;

(f) the number of people served; and

(g) whether the population served is a highly susceptible population.

(21) 8-402.11 Allowed at reasonable times after due notice.

(a) After the regulatory authority presents official credentials and provides notice of the purpose of, and an intent to conduct, an inspection, the person in charge shall allow the regulatory authority to determine if the food establishment, mobile food establishment, food processing plant, or home-based food processing operation is in compliance with the food code by allowing access to the establishment, allowing inspection, and providing information and records specified in the food code and to which the regulatory authority is entitled according to law, during the food establishment's hours of operation and other reasonable times.

(b) The regulatory authority shall be allowed to copy any records pertaining to the manufacture, processing, packing, distribution, receipt, holding, or importation of food maintained by or on behalf of a food establishment, mobile food establishment, food processing plant, or home-based food processing operation in any format, including paper and electronic formats, and at any location. Proprietary documents shall be protected by the regulatory authority as specified in Section 8-202.10 of the food code.

(22) 8-402.20 Refusal, notification of right to access, and final request for access. If a person denies access to the regulatory authority, the regulatory authority shall:

(a) inform the person that:

(i) the permit holder is required to allow access to the regulatory authority as specified under Section 8-402.11 of the food code;

(ii) access is a condition of the acceptance and retention of a food establishment permit to operate as specified under Section 8-304.11 of the food code;

(iii) if access is denied, an order issued by the appropriate authority allowing access, hereinafter referred to as an inspection order, may be obtained according to law; and

(iv) refusal to allow access is grounds for immediate permit suspension or revocation;

(b) make a final request for access.

(23) 8-403.30 Issuing report and obtaining acknowledgement of receipt. The regulatory authority shall provide a copy of the completed inspection report and the notice to correct violations, as soon as possible after the inspection, to the permit holder or to the person in charge, and request a signed acknowledgment of receipt.

(24) 8-801.10 Proper methods. A notice issued in accordance with the food code shall be considered to be properly served if it is served by one of the following methods:

(a) the notice is personally served by the regulatory authority, a law enforcement officer, or a person authorized to serve a civil process to the permit holder, the person in charge, or person operating a food establishment without a permit; or

(b) the notice is sent by the regulatory authority to the last known address of the permit holder or the person operating a food establishment without a permit, by registered or certified mail or by other public means so that a written acknowledgment of receipt may be acquired.

(25) 8-801.20 Restriction or exclusion order, hold order or immediate suspension. An employee restriction or exclusion order, an order to hold and not distribute food, such as a hold, detention, embargo, or seizure order which is hereinafter referred to as a hold order, or an immediate suspension order shall be:

(a) served as specified in Paragraph (24) of Subsection B of 7.6.2.8 NMAC; or

(b) clearly posted by the regulatory authority at a public entrance to the food establishment and a copy of the notice sent by first class mail to the permit holder or to the owner or custodian of the food, as appropriate.

(26) 8-901.10 Conditions warranting remedy. The regulatory authority may seek an administrative or judicial remedy to achieve compliance with the provisions of the food code if a person operating a food establishment or employee:

(a) fails to have a valid permit to operate a food establishment as specified under Section 8-301.11 of the food code;

(b) violates any term of condition of a permit as specified under Section 8-304.11 of the food code;

(c) allows repeated violations of the Food Service Sanitation Act, Chapter 25, Article 1 NMSA 1978; the New Mexico Food Act, Chapter 25, Article 2 NMSA 1978; or serious or repeated food code violations to reoccur or remain uncorrected beyond time frames for correction approved, directed, or ordered by the regulatory authority;

(d) fails to comply with a regulatory authority order issued as specified in Section 8-501.20 of the food code concerning an employee or conditional employee suspected of having a disease transmissible through food by infected persons;

(e) fails to comply with a hold order as specified in Paragraph (27) of Subsection B of 7.6.2.8 NMAC;

(f) fails to comply with an order issued as a result of a hearing for an administrative remedy as specified in Section 8-906.40 of the food code; or

(g) Fails to comply with an immediate suspension order issued by the regulatory authority as specified in Paragraph (24) of Subsection B of 7.6.2.8 NMAC and Paragraph (30) of Subsection B of 7.6.2.8 NMAC.

(27) 8-903.10 Hold order, justifying conditions and removal of food.

(a) The regulatory authority may place a hold order on a food that:

(i) originated from an un-approved source;

(ii) may be unsafe, adulterated, or not honestly presented;

(iii) is not labeled according to law, or, if raw molluscan shellfish, is not tagged or labeled according to law; or

(iv) is otherwise not in compliance with the food code.

(b) If the regulatory authority has reasonable cause to believe that the hold order will be violated, of finds that the order is violated, the regulatory authority may remove the food that is subject to the order to a place of safekeeping.

(28) 8-903.20 Hold order, warning or hearing not required.

(a) The regulatory authority may issue a hold order to a permit holder or to a person who owns or controls the food, as specified in Paragraph (26) of Subsection B of 7.6.2.8 NMAC, without prior warning, notice of a hearing, or a hearing on the hold order.

(b) If the suspected food has been distributed, the permit holder shall be given the opportunity to recall the food voluntarily at the permit holder's expense.

(c) If the permit holder refuses to recall the suspected food, the regulatory authority may order a mandatory recall of the suspected food at the permit holder's expense.

(29) 8-903.60 Examining, sampling, and testing food. The regulatory authority may examine, sample, and test food in order to determine its compliance with the Food Service Sanitation Act, Chapter 25, Article 1 NMSA 1978; the New Mexico Food Act, Chapter 25, Article 2 NMSA 1978; and 7.6.2 NMAC.

(30) 8-903.80 Destroying or denaturing food. When any food is found, by examination or laboratory analysis, to be in violation of safe health standards, the regulatory authority may order condemnation and disposal of the product lot, at the expense of the permit holder.

(31) 8-904.10 Conditions warranting action. The regulatory authority may immediately suspend a permit if it determines through inspection, or examination of employees, food records, or other means as specified in the food code, that an imminent health hazard exists.

(32) 8-904.20 Immediate suspension, warning or hearing not required. The regulatory authority may immediately suspend a person's permit as specified in Paragraph (31) of Subsection B of 7.6.2.8 NMAC by providing written notice as specified in Section Paragraph (25) of Subsection B of 7.6.2.8 NMAC of the immediate suspension to the permit holder or person in charge, without prior warning, notice of a hearing, or a hearing.

(33) 8-904.30 Contents of the notice. An immediate suspension notice shall state:

(a) that the food establishment permit is immediately suspended and that all food operations shall immediately cease;

(b) the reasons for the immediate suspension with reference to the provisions of the food code that are in violation;

(c) the name and address of the regulatory authority representative to whom a written request for re-inspection may be made and who may certify that reasons for the suspension are eliminated; and

(d) that the permit holder may request an appeal hearing by submitting a timely request as specified in Paragraph (35) of Subsection B of 7.6.2.8 NMAC and Paragraph (36) of Subsection B of 7.6.2.8 NMAC.

(34) 8-904.50 Term of suspension, reinstatement of permit.

(a) An immediate suspension shall remain in effect until the conditions cited in the notice of suspension no longer exist and their elimination has been confirmed by the regulatory authority through re-inspection and other means as appropriate.

(b) The suspended permit shall be reinstated immediately if the regulatory authority determines that the public health hazard or nuisance no longer exists. A notice of the reinstatement shall be provided to the permit holder or person in charge.

(35) 8-905.10 Response to notice of hearing or request for hearing, basis and time frame.

(a) A permit applicant may request a hearing regarding the disposition of an application for a new or revised permit if the regulatory authority does not issue or deny the permit within the time frame specified in the Food Code.

(b) A permit holder may request a hearing to address concerns about the regulatory authority's denial of application for a permit or request for a variance, or compliance actions, except that a hearing request does not stay the regulatory authority's restriction or exclusion of employees specified in Section Paragraph (31) of Subsection B of 7.6.2.8 NMAC.

(c) A person desiring a hearing in response to a denial of an application for permit or an adverse administrative determination shall submit a hearing request to the regulatory authority within 10 calendar days of the date of the denial, inspection, or compliance action.

(36) 8-905.20 Request for hearing, required form and contents. A request for hearing as specified in Section 8-905.10 of the food code shall be in written form and contain the following information.

(a) If a request for hearing:

(i) a statement of the issue of fact specified in Paragraph (B) of Section 8-905.30 of the food code for which the hearing is requested; and

(ii) a statement of defense, mitigation, denial, or explanation concerning each allegation of fact.

(b) If either a response to notice of hearing or a request for a hearing:

(i) a statement indicating whether the presence of witnesses for the regulatory authority is required; and

(ii) the name and address of the respondent's or requestor's legal counsel, if any.

(37) 8-905.60 Notice, contents. A notice of hearing shall contain the following information:

(a) time, date and place of the hearing;

(b) purpose of the hearing;

(c) the rights of the respondent, including the right to be represented by counsel and to present witnesses and evidence on the respondent's behalf as specified in Paragraph (39) of Subsection B of 7.6.2.8 NMAC; and

(d) the consequences of failing to appear at the hearing.

(38) 8-905.100 Record of proceeding. A complete digital recording of a hearing shall be made and maintained as part of the regulatory authority's records.

(39) 8-907.10 Rights of parties.

(a) The rules of civil procedure and the rules of evidence shall not apply, but a hearing shall be conducted so that all relevant views, arguments, and testimony are amply and fairly presented.

(b) Parties to a hearing may be represented by counsel, examine and cross examine witnesses, and present evidence in support of their position.

(40) 8-907.30 Evidence to be excluded. Evidence shall be excluded that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds, or on the basis of evidentiary privilege.

(41) 8-909.10 Gaining access to premises and records. The regulatory authority may seek access for one or more of the following purposes, according to law for gaining access:

(a) if admission to the premises of a food establishment, mobile food establishment, temporary food establishment, food processing plant, or home-based food processing operation is denied or other circumstances exist that would justify an inspection order under law, to make an inspection including taking photographs;

(b) to examine and sample the food or other substances found on the premises; and

(c) to examine and copy the records on the premises relating to food as specified in Section 8-402.11 of the food code.

C. Omissions. The following provisions are omitted from the incorporated food code:

(1) 5-203.11(C) Handwashing sinks.

(2) 8-7 Authority.

(3) 8-902.20 Content of inspection order.

(4) 8-905.30 Provided upon request.

(5) 8-905.40 Provided in accordance with law.

(6) 8-905.50 Timeliness, appeal proceeding within five business days, other proceeding within 30 calendar days.

(7) 8-905.70 Proceeding commences upon notification.

(8) 8-905.80 Procedure, expeditious and impartial.

(9) 8-905.90 Confidential.

(10) 8-906.10 Appointment by regulatory authority and purpose.

(11) 8-906.20 Qualifications.

(12) 8-906.30 Powers, administration of hearings.

(13) 8-906.40 Powers, administrative remedies.

(14) 8-909.20 Contents of court petition.

(15) 8-909.30 Sworn statement of denied access.

(16) 8-909.40 Contents of an order.

(17) 8-909.50 Optional contents of an order.

(18) 8-910.10 Institution of proceedings.

(19) 8-911.10 Authorities, methods, fines, and sentences.

(20) 8-912.10 Petitions of injunction.

(21) 8-913.10 Petitions, penalties, and continuing violations.

D. Additional requirements. Except as otherwise provided, the following additions are made to the incorporated food code:

(1) 2-104.11 Food handler cards.

(a) Except as specified in Subparagraphs (b) and (g) of Paragraph (1) of Subsection D of 7.6.2.8 NMAC, food employees shall demonstrate their knowledge of safe food handling practices through passing a test from a food handler training program and possess a valid food handler card.

(b) Except as specified in Subparagraph (g) of Paragraph (1) of Subsection D of 7.6.2.8 NMAC, individuals who do not possess a valid food handler card prior to employment as a food employee shall obtain such card within 30 calendar days from the beginning of employment.

(c) Food handler cards shall be kept by the food employee on his or her person while working at a food establishment or a copy kept on file by the current employer and be made available for inspection by the regulatory authority.

(d) The regulatory authority may approve an entity's training program to be used in lieu of requiring a food handler card of its food employees. A food employee must complete the entity's approved training program at least every three years. This exemption is only valid during the food employees' time of employment with the entity that administered the training.

(e) An employee or person in charge at any food establishment, food processing plant, temporary food establishment, or mobile food establishment must provide training regarding pertinent safe food handling practices to food employees prior to beginning food handling duties, if the food employee does not hold a valid food handler card. Record of the training, including name of instructor, date of training, and name(s) of food employees shall be maintained on file and made available to the regulatory authority upon request. The record of training shall be maintained for the duration of the food employee's employment.

(f) Food handler cards shall be valid for three years from the date of issuance.

(g) This paragraph does not apply to:

(i) food employees who comply with Paragraph (1) of Subsection B of Section 7.6.2.8 NMAC;

(ii) food employees who comply with Subparagraph (b) of Paragraph (1) of Subsection D of 7.6.2.8 NMAC;

(iii) food employees who do not prepare or handle Time/Temperature Control for Safety Food, provided that at a minimum the permit holder assures the employee complies with Subparagraph (e) of Paragraph (1) of Subsection D of 7.6.2.8 NMAC;

(iv) employees or volunteers who occasionally function as a food employee, provided that at a minimum the permit holder assures the employee complies with Subparagraph (e) of Paragraph (1) of Subsection D of 7.6.2.8 NMAC;

(v) food employees or volunteers working as food employees of temporary food establishments, provided that at a minimum the person in charge during hours of operation complies with Paragraph (1) of Subsection B of Section 7.6.2.8 NMAC or has a valid food handler card, either of which shall be obtained prior to issuance of a temporary food establishment permit, and the permit holder assures the food employee or volunteer complies with Subparagraph (e) of Paragraph (1) of Subsection D of 7.6.2.8 NMAC;

(vi) food employees or volunteers working as food employees for charitable organizations serving the needy, provided that at a minimum the person in charge during hours of operation complies with Paragraph (1) of Subsection B of Section 7.6.2.8 NMAC; or

(vii) employees who do not function as food employees.

(h) The food handler card requirements of Paragraph (1) of Subsection D of Section 7.6.2.8 NMAC shall become effective three months after the effective date of 7.6.2.8 NMAC.

(2) 8-301.12 Responsibility for operation.

(a) Except as specified in Subparagraphs (b) and (c) of Paragraph (2) of Subsection D of 7.6.2.8 NMAC, the permit holder shall be responsible for all food operations conducted on the premises for which a permit is issued.

(b) Permit holders shall not be responsible for food operations on the premises when another permit holder is operating with a permit.

(c) Each permit holder shall be responsible for shared facilities or equipment on the premises.

(3) 8-303.15 Permit fees, late fees, penalty fees, and expiration dates.

(a) Except as specified in Subparagraph (b) of Paragraph (3) of Subsection D of 7.6.2.8 NMAC, permit fees shall be:

(i) $200.00 for food establishments, mobile food establishments, servicing areas, and food processing plants;

(ii) $100.00 for home-based food processing operations; and

(iii) $25.00 for temporary food establishments for each single event or celebration.

(b) Permit fees shall be waived for food establishments, mobile food establishments, and temporary food establishments that provide food to consumers at no charge, as well as temporary food establishments that serve only non-TCS food or operate no more than two days in a calendar month.

(c) In addition to the permit fees specified above, a $25 late fee shall be added to the permit fee if the permit is not renewed on or before the expiration date of the permit.

(d) A re-inspection penalty fee of $100 shall be assessed by the regulatory authority and paid by the operator when a re-inspection is scheduled by the regulatory authority as specified in Subparagraph (c) of Paragraph (18) of Subsection B of 7.6.2.8 NMAC.

(e) If a permit is not renewed as specified in Section 8-303.20 of the food code, and applicable re-inspection penalty fees are not paid within 30 days after the expiration of the permit, a new permit shall not be issued except upon completion of requirements specified in Section 8-303.10 of the food code.

(f) Permits issued by the regulatory authority shall include an expiration date, which shall be:

(i) The last day of the anniversary month of the date of original issue for food establishments, mobile food establishments, servicing areas, and food processing plants.

(ii) The last day of the single event or celebration for temporary food establishments.

(g) No discount or refund shall be made for partial years or for permit suspension or revocation.

(4) 8-407.11 Posting of compliance emblems.

(a) Except as specified in Subparagraph (e) of Paragraph (4) of Subsection D of 7.6.2.8 NMAC, an emblem indicating the compliance status of a food establishment shall be posted in a conspicuous place at each entrance to the food establishment where it can be easily seen by consumers and shall be posted or removed only by the regulatory authority.

(b) An "approved" emblem shall be posted at a food establishment that is operated in compliance with the food code.

(c) An "unsatisfactory" emblem may be posted at a food establishment when any priority items are out of compliance during an inspection; or any priority item, priority foundation item, or core item is out of compliance on a repeated basis within the last 25 months.

(d) Removal, defacing, or obstruction of an emblem by any person other than the regulatory authority shall result in immediate permit suspension or revocation.

(e) Food processing plants and temporary food establishments are exempt from the posting of compliance emblems.

(5) 8-901.201 Permit suspension and revocation.

(a) The regulatory authority may suspend or revoke a permit for reasons specified in Section 8-901.10 of the food code.

(b) The regulatory authority shall conduct a hearing as specified in Section 8-905 of the food code, as amended in 7.6.2 NMAC, prior to suspending or revoking a permit.

(c) The permit holder shall be notified of the hearing at least seven days prior to the hearing as specified in Paragraph (37) of Subsection B of 7.6.2.8 NMAC.

(d) Failure by the permit holder to appear shall result in immediate suspension or revocation of the permit.

(e) The suspension of a permit shall remain in effect until the conditions leading to the suspension no longer exist and their elimination has been confirmed by the regulatory authority through re-inspection and other means as appropriate.

(f) A permit shall only be revoked if a permit has previously been suspended.

(g) A permit that has been revoked shall not be considered for reapplication until the permit holder has demonstrated to the satisfaction of the regulatory authority that the food establishment will comply with the food code.

N.M. Admin. Code § 7.6.2.8

Adopted by New Mexico Register, Volume XXIX, Issue 21, November 13, 2018, eff. 12/1/2018