Section ATCP 78.09 - Enforcement(1) INSPECTIONS AND ACCESS TO THE PREMISES. (a)Inspections. Pursuant to ss. 93.07(24) (e) and 97.65(1), Stats., an authorized employee or agent of the department, upon presenting proper identification, may enter any camp at any reasonable time, for any of the following purposes: 2. To determine if there has been a violation of this chapter or s. 97.67, Stats.3. To determine compliance with previously written orders to correct violations.4. To secure samples or specimens.5. To examine and copy relevant documents and records related to the operation of the camp.6. To obtain photographic or other evidence needed to enforce this chapter.(b)Reinspections.1. The department or its agent may perform a reinspection at the camp or an administrative follow-up with a camp whenever an inspection or the investigation of a complaint reveals any of the following conditions:a. Presence of an imminent hazard that cannot be corrected during the inspection.b. An inspection reveals 6 or more priority violations, regardless if they have been corrected during the inspection.c. Repeat violations, whether corrected during the inspection or not, are documented on 3 consecutive inspections regardless of inspection type.d. The department's authorized representative and that representative's supervisor determine there is a lack of active managerial control at the camp, based on the quantity and the criticality of the violations observed on the most recent inspection.2. A reinspection or administrative follow-up shall be scheduled to allow the operator a reasonably sufficient time to correct the violations.3. A reinspection fee shall be charged for the reinspection or administrative follow-up in the amount listed in s. ATCP 78.08 Table B or C or the applicable amount as determined by an agent of the department.4. If an additional reinspection or administrative follow-up is required because a violation has not been corrected in the scheduled time, the department shall assess a second or subsequent reinspection fee listed in s. ATCP 78.08 Table B or C pursuant to s. ATCP 78.08 (3) (d), and the department may order the operator to show just cause why the license should not be suspended or revoked pursuant to s. ATCP 78.10.(2) GENERAL ORDER TO CORRECT VIOLATIONS. (a)Written orders. If upon inspection of a camp, the department or agent finds that the camp is not designed, constructed, equipped or operated as required under this chapter, the department or agent shall issue a written order to correct the violation. The order shall specify the correction needed for compliance and the time period within which the correction should be made. The time period specified in the order may be extended at the discretion of the department or agent as specified in par. (c).(b)Failure to correct a violation.1. If a violation is not corrected by the expiration of the time period stated in the order given pursuant to par. (a), or any extension of time granted pursuant to par. (c), the department or agent may issue a special order pursuant to s. ATCP 78.10 to suspend or revoke the license to operate the camp. An order for suspension or revocation shall take effect as provided pursuant to s. ATCP 78.10.2. Pursuant to s. 97.12(5), Stats., any person who fails to comply with an order of the department may be required to forfeit $50 for each day of noncompliance. A person may appeal a forfeiture pursuant to s. ATCP 78.11.(c)Requests for an extension to correct a violation.1. The department or its agent may extend the time to correct a violation based on a determination of the seriousness of the violation, the operator's progress towards correcting the violation, and the operator's previous history of compliance.2. To request an extension to correct a violation, the operator shall contact the department or agent before the time specified in the written order to correct the violation expires. The operator shall provide information that demonstrates to the department or its agent that corrective action has been initiated, but additional time is needed to fully correct the violation.(3) TEMPORARY ORDERS. (a)Conditions for a temporary order. As provided in s. 97.65(2) (a), Stats., whenever, as a result of an inspection pursuant to sub. (1), the department or its agent has reasonable cause to believe that any examined food constitutes, or that any construction, sanitary condition, operation, or method of operation of the premises or equipment used on the premises creates, an immediate danger to health, the department or its agent may issue a temporary order and cause it to be delivered to the licensee, or to the owner or custodian of the food, or to both. The order may prohibit the sale or movement of the food for any purpose, prohibit the continued operation or method of operation of specific equipment, or require the premises to cease other operations or methods of operation which create the immediate danger to health, or set forth any combination of these requirements. The department may order the cessation of all operations authorized by the license only if a more limited order does not remove the immediate danger to health.(b)Duration of a temporary order; actions prohibited.1. A temporary order shall take effect upon delivery to the operator or responsible supervisor. Except as provided in par. (c), the temporary order shall remain in effect for 14 days from the date of delivery, but a temporary order may be reissued for one additional 14-day period if necessary to complete any analysis or examination of samples, specimens, or other evidence.2. No operation or method of operation prohibited by the temporary order may be resumed without the approval of the department or agent until the order has terminated or the time period specified in subd. 1., has expired, whichever occurs first, unless as provided pursuant to par. (c), the department or its agent provides notice that an immediate danger to health or safety is present. If, upon completed analysis or examination, the department or agent determines that construction, sanitary condition, operation, or method of operation of the premises or equipment does not constitute an immediate danger to health or safety, the department or agent shall immediately notify the owner, operator or responsible supervisor in writing and the temporary order shall terminate upon receipt of the written notice.(c)Notice of findings upon analysis or examination. If the analysis or examination pursuant to sub. (1), shows that the construction, sanitary condition, operation or method of operation of the premises or equipment constitutes an immediate danger to health or safety, the department or agent, within the effective period of the temporary order specified in par. (b) 1., shall provide written notice of the findings to the owner, operator or responsible supervisor. Upon receipt of the notice, the temporary order remains in effect until a final decision is issued pursuant to s. ATCP 78.11. The notice shall include a statement that the facility has a right to request a hearing pursuant to s. ATCP 78.11, within 15 days after issuance of the notice.(d)Failure to comply with temporary order; forfeitures and penalties. Pursuant to s. 97.65(5) (a), Stats., any person who fails to comply with a temporary order issued by the department may be fined not more than $10,000 or imprisoned not more than one year in the county jail, or both. A person may appeal a forfeiture pursuant to s. ATCP 78.11.(4) ACTION PLANS. (a)Required components. When required by the department, its agent, or this chapter, the camp operator and the department or its agent shall develop, on a form provided by the department, an action plan for compliance. The action plan shall include all of the following:1. A description of the violation and code citation.2. The steps the operator will take to correct the violation.3. The date by which compliance will be achieved.(b)Continued noncompliance. The department or its agent shall void the camp license pursuant to s. ATCP 78.07 (5) (b), if the operator continues to be out of compliance or fails to meet the objectives outlined in the action plan past the date provided in the action plan.Wis. Admin. Code Department of Agriculture, Trade and Consumer Protection ATCP 78.09
Renumbered from DHS 175.09 Register June 2016 No. 726 ; correction in (1) (a), (2) (intro.), (3) made unders. 13.92(4) (b) 7,Stats., Register June 2016 No. 726, eff. 7/1/2016Amended by, CR 18-019: am. (1) (a), (e), (3) Register January 2020 No. 769, eff. 2/1/2020Adopted by, CR 21-109: cr. Register June 2023 No. 810, eff. 9-24-23; correction in (1) (b) 4. made under s. 13.92 (4) (b) 7, Stats., Register June 2023 No. 810, eff. 9/24/2023This section is created eff. 9-24-23 by CR 21-109.