Chapter ATCP 74

ATCP 74.16(1) (1) The agent program shall take necessary actions to enforce the provisions of s. 97.30, Stats., and subchs. III and IV of ch. 97, Stats., and related administrative rules in chs. ATCP 70, 72, 73, 75, 76, 78, and 79 and ch. ATCP 75 Appendix, and any local ordinances or regulations, adopted pursuant to ss. 97.41 (7) and 97.615 (2) (g), Stats., for establishments over which the agent program has been delegated authority under the contract between the department and the agent program.

ATCP 74.16(2) (2) Enforcement actions may include license revocation; license suspension; fines or civil forfeitures; orders to close; temporary or final hold orders on equipment, food, processes, or establishments; and the placement of conditions on licenses.

ATCP 74.16(3) (3) The agent program shall maintain a written enforcement policy that is distributed to its inspection staff and shall make it available to the department during evaluations, whenever it is substantively changed, or upon request.

ATCP 74.16(4) (4) The agent program shall notify the department, in writing within 10 days, after taking any enforcement action against an establishment involving license suspension, license revocation, or court or administrative actions.

ATCP 74.16(5) (5) The agent program shall be responsible for costs incurred in enforcement actions taken in the agent program’s jurisdiction.

ATCP 74.16(6) (6) The agent program shall take samples requested by the department.

ATCP 74.16(7) (7) The agent program may conduct any requested sample analyses in a laboratory certified by the department, pursuant to ch. ATCP 77 for those analyses. All costs associated with collecting and testing these samples shall be assumed by the agent program.

ATCP 74.16(8) (8) The agent program shall share laboratory results with the department.

ATCP 74.16(9) (9) Agent programs that do not have the laboratory capability to perform required analyses, or choose not to perform those analyses, shall submit samples to the department’s bureau of laboratory services for analysis. The agent program shall assume the cost of collecting samples and shipping them to the department’s laboratory. The department shall assume the cost of the laboratory analysis of those samples.

ATCP 74.16(10) (10) If the department has notified an agent program of deficiencies by any licensee, in complying with the enforcement provisions of this chapter or any other rules or statutes applicable under the contract, and that agent program does not act expeditiously or take effective action with the licensee, the department may act, pursuant to ss. 97.12, and 97.65, Stats., to enforce compliance with this chapter.

ATCP 74.16(11) (11) The agent, if requested by the department, shall conduct effectiveness checks after product recalls or other situations in which a license holder is required to remove food from sale or service.

ATCP 74.16 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18; correction in (1) made under s. 35.17, Stats., Register February 2018 No. 746.

ATCP 74.18 ATCP 74.18 Reimbursement and other payments for services.

ATCP 74.18(1) (1) Department reimbursement to agents.

ATCP 74.18(1)(a) (a) By September 30 of each fiscal year, the department shall reimburse agent programs for inspecting vending machines during the previous fiscal year under terms and conditions specified in the contract. The department shall, upon written request, provide any agent with information on how to request reimbursement.

ATCP 74.18(1)(am) (am) Fee reimbursements for the inspection of vending machines that have moved from one agent program’s jurisdiction to another shall be credited to the agent program making the first inspection during the fiscal year.

ATCP 74.18(1)(b) (b) The reimbursement rate may not exceed 20% of the state license fees the department sets by administrative rule for the types of establishments that the agent issues licenses. The calculation of the state fees is based on state license fees only, not pre-inspection and reinspection fees. The current reimbursement rate is set within these limits by the contract.

ATCP 74.18(2) (2) Agent reimbursement to the department.

ATCP 74.18(2)(a) (a) By September 30 of each fiscal year, agent programs shall reimburse the department for each license issued by the agent program during the preceding fiscal year as a fee for agent training, support, and oversight costs under terms and conditions specified in the contract. The reimbursement rate may not exceed 20% of the state license fees the department sets by administrative rule for the types of establishments that the agent issues licenses. The department shall provide at least one fiscal year notice before an increase in reimbursement occurs.

ATCP 74.18(2)(am) (am) Retail food and recreational establishment license fee reimbursement shall be:

ATCP 74.18(2)(am)1. 1. A fee equal to 10% of the applicable state license fee, regardless of the license fee actually charged by the local agent, if the local agent prepares and submits to the department, by September 30 of that year, an annual self-assessment as required by ss. 97.41 and 97.615, Stats.

ATCP 74.18(2)(am)2. 2. A fee equal to 20% of the applicable state license, regardless of the license fee actually charged by the local agent, if the local agent fails to submit the annual self-assessment in par. (am) to the department by September 30 of that year. A fee payment under this paragraph does not exempt the agent from the duty to prepare and submit an annual self-assessment.

ATCP 74.18(3) (3) additional department costs. If an agent program has contracted with the department, pursuant to s. 97.41, Stats., and s. ATCP 74.06, for the department to collect fees and issue licenses, the agent program shall pay the department for the actual cost of providing these services.

ATCP 74.18 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18; correction in numbering in (1), (2) made under s. 13.92 (4) (b) 1., Stats., and correction in (2) (am) 2. made under s. 13.92 (4) (b) 7., Stats., Register February 2018 No. 746.

ATCP 74.20 ATCP 74.20 Reports and records.

ATCP 74.20(1) (1) An agent program shall retain complete and accurate records including, but not limited to, copies of all reports and inspections, follow-up inspections, sampling, and all orders, for a minimum of three years after completion, and longer if required by applicable statutes, rules, or local ordinances. The records shall include accurate records of all licenses and license holders, license fee revenues, inspection charges, complaints, complaint investigations, and all program costs.

ATCP 74.20(2) (2) The agent program shall accurately and completely document the cost of the agent’s program that is administered under the contract with the department. The cost may include direct costs for licensing, inspection, complaint handling and investigation, enforcement, information management, reporting, and any other activities carried out within the limits of the contract with the department. The costs may also include documented indirect costs normally associated with the program. These costs may include staff, equipment, facilities, contract service, and other documented costs allocated to the program.

ATCP 74.20(3) (3) The agent program shall provide upon the department’s written request all information necessary to monitor the agent program’s detailed costs and revenues as specified in s. ATCP 74.20 (2), agent program performance and activities, and the status of regulated facilities.

ATCP 74.20(4) (4) The agent program shall submit to the department by the 10th of each month the following specific information:

ATCP 74.20(4)(a) (a) All new licensees under the contract within the preceding month.

ATCP 74.20(4)(b) (b) All changes in the license status of existing establishments during the previous month.

ATCP 74.20(5) (5) By September 1 of each fiscal year, the agent program shall provide the department with a complete list of the names and addresses of persons licensed by the agent program during the previous fiscal year.

ATCP 74.20(6) (6) The agent shall maintain records to demonstrate that license and other program-related fees collected by an agent program do not exceed the reasonable costs incurred by the agent program for enforcing and administering the provisions of the contract.

ATCP 74.20 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18.

ATCP 74.22 ATCP 74.22 Licensing and standards.

ATCP 74.22(1) (1) The agent program shall issue licenses in its jurisdiction, in accordance with s. 97.30, Stats., and subchs. III and IV of ch. 97, Stats., and shall ensure that no person in its jurisdiction, subject to regulation under those statutes, operates an establishment without a valid license except:

ATCP 74.22(1)(a) (a) Mobile retail food establishments, operating in more than one jurisdiction, shall be licensed by the department, pursuant to s. 97.30 (2) (a), Stats.

ATCP 74.22(1)(a)1. 1. If the mobile retail food establishment has a service base, as defined in ch. ATCP 75 Appendix Part 1-201.10 (B), located within an agent’s jurisdictional boundary, the agent shall issue the service base license.

ATCP 74.22(1)(a)2. 2. The agent may charge an inspection fee for any inspection of a department-licensed mobile retail food establishment.

ATCP 74.22(1)(b) (b) Temporary retail food establishments that operate in more than one jurisdiction shall be licensed by the department pursuant to s. 97.30 (2) (a), Stats.

ATCP 74.22(1)(b)1. 1. The department shall provide a guidance document for the agent to use to determine which temporary retail food establishment license applies.

ATCP 74.22(1)(b)2. 2. The agent may charge an inspection fee for any inspection of a department-licensed temporary retail food establishment.

ATCP 74.22(1)(c) (c) Any establishment that is selling, holding, or distributing food and exempt from the requirement to hold a retail food establishment license, pursuant to s. 97.30 (2) (b), Stats., is under the regulatory authority of the department and may not be licensed, charged a fee, or inspected in any manner related to food, dairy, or meat processing, or wholesale or retail food operations by the agent.

ATCP 74.22(2) (2) An annual license issued by the agent program shall include:

ATCP 74.22(2)(a) (a) The individual, married couple or legal entity who will hold the license and a complete street address. A website address or post office box number do not meet this requirement.

ATCP 74.22(2)(b) (b) Doing business as (DBA) name and complete address of the establishment.

ATCP 74.22(2)(c) (c) License number and expiration date.

ATCP 74.22(2)(d) (d) Type of establishment, for licensing purposes.

ATCP 74.22(2)(e) (e) Numbers of units, rooms, or sites and complexity, if applicable.

ATCP 74.22(3) (3) Each license issued by the agent program shall expire on June 30, except for the following:

ATCP 74.22(3)(a) (a) New licenses issued during the period beginning on April 1 and ending on June 30 shall expire on June 30 of the next calendar year.

ATCP 74.22(3)(b) (b) A local health department of a city of the 1st class that has contracted with the department may issue a license for a retail food establishment or a bed and breakfast establishment, pursuant to ss. 97.30 (2) (am) or 97.605 (5) (b), Stats., at any time during the year. That license shall expire one year after the date it was issued.

ATCP 74.22(4) (4) The agent program shall notify the department when, in the performance of its duties, it encounters an unlicensed establishment that falls under the department’s licensing and inspection authority.

ATCP 74.22(5) (5) The department shall notify an agent program when, in the performance of its duties, it encounters an unlicensed establishment that falls under the agent program’s licensing and inspection authority.

ATCP 74.22(6) (6) The agent program may, pursuant to the provisions of and subject to s. ATCP 75.03 (6), issue an interim license.

ATCP 74.22(7) (7) The agent program may not issue an interim license in response to a renewal application by the holder of an existing license.

ATCP 74.22 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18.

ATCP 74.24 ATCP 74.24 License denial, suspension, or revocation. The agent program may deny, suspend, or revoke a license or impose conditions on a license, as provided in s. 93.06 (7) and (8), Stats. Except as otherwise provided by statute, rule, or local ordinance, the suspension or revocation of a license shall comply with the prior notice requirements of s. 227.51, Stats.

ATCP 74.24 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18.

ATCP 74.26 ATCP 74.26 Contract termination, revocation, refusal to renew, or suspension.

ATCP 74.26(1) (1) An agent program may terminate the contract upon 90 days written notice to the department. The notice shall specify the reason or reasons for the termination and the last day, not to exceed the term of the current contract, that the agent program will maintain its agent status.

ATCP 74.26(2) (2) If the department finds that the agent program has failed to comply with this chapter, with the conditions in ss. 97.30, 97.41, Stats., or subch. III or IV of ch. 97, Stats., or with the terms and conditions of the contract, the department may revoke the agent program’s agent status as provided in s. 97.41 (2), Stats., upon 90 days written notice to the agent program, or refuse to renew a contract for the next contract period. The notice shall specify the reason or reasons the agent program has had its agent status revoked or refused to renew, and shall specify the last day in which the local health department may operate an agent program.

ATCP 74.26(3) (3) If the department determines that it is necessary to suspend an agent program’s contract to protect public health or safety, the department may immediately suspend the contract upon written notice to the agent program.

ATCP 74.26(4) (4) The agent program, following a revocation, refusal to renew, or suspension, may request a hearing if it is requested in writing by the agent program within 10 days of the department’s written notice. A final decision, after hearing, on a revocation or refusal to renew shall be issued by the department before the last day of the contract, specified in the department’s written notice. If a hearing on a suspension is requested, the department shall hold it within 15 days after the department receives that request, unless the parties agree to an extension. Any suspension shall continue until such time as the department has issued a final decision.

ATCP 74.26 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18.