ATCP 75.07(8)
(8)
The department may grant a variance, as specified in ch.
ATCP 75 Appendix part 1-104.11, for a mobile food establishment to operate without a licensed base.
ATCP 75.07 History
History: CR 17-074: cr. Register July 2020 No. 775, eff. 10-25-20. ATCP 75.075(1)(1)
Approval required. An applicant or license holder of a new or extensively remodeled retail food establishment shall submit a retail food establishment plan to the department or its agent. The department or its agent may require an applicant or license holder to submit this documentation when a change of ownership has occurred.
An applicant or license holder shall obtain plan approval from the department or its agent before any of the following occurs:
ATCP 75.075(1)(a)
(a) The applicant or license holder begins construction of a retail food establishment.
ATCP 75.075(1)(b)
(b) The license holder modifies or extensively remodels a retail food establishment.
ATCP 75.075(2)(a)
(a) An applicant for plan approval shall submit all of the following to the department or its agent:
ATCP 75.075(2)(a)1.
1. A fully and accurately completed, signed, and dated application for plan approval on a form provided by the department or its agent.
ATCP 75.075(2)(a)6.
6. Copies of other state, county, or municipal approvals relating to the operation of the retail food establishment.
ATCP 75.075(2)(a)7.
7. A copy of the plans and specifications drawn to scale or a drawing indicating distance of separation measured in feet in accordance with the applicable requirements of this chapter.
ATCP 75.075(2)(a)8.
8. Any other information required by the department or its agent regarding the operation of the retail food establishment as it relates to the health, safety, and welfare of the public.
ATCP 75.075 Note
Note: To obtain a copy of the plan approval application form, send an email to
datcpdfslicensing@wisconsin.gov or contact the Bureau of Food and Recreational Businesses at (608) 224-4700 or PO Box 8911, Madison, Wisconsin 53708-8911.
ATCP 75.075(2)(b)
(b) If the department or its agent receives a plan or application that is not completed as specified in par.
(a), the department shall contact the plan applicant to seek additional information.
ATCP 75.075(2)(c)
(c) Within 30 days after receipt of complete information under par.
(a), or any additional information requested under par.
(b), the department or its agent shall approve or deny the plan. If the department or its agent approves the plan, the department or its agent shall issue a plan approval letter to the plan applicant. If the department or its agent denies a plan, it shall give the plan applicant the reason for the denial, in writing. The plan applicant may appeal the decision made by the department or its agent under ss.
ATCP 75.14 and
75.16.
ATCP 75.075 History
History: CR 17-074: cr. Register July 2020 No. 775, eff. 10-25-20; correction in numbering of (1) made under s. 13.92 (4) (b) 1., Stats., Register July 2020 No 775. ATCP 75.08
ATCP 75.08 Retail food establishment fees. ATCP 75.08(1)(a)1.1. Except for a retail food establishment serving only prepackaged foods or meals, a transient retail food establishment, a vending machine, a micro market, or a mobile retail food establishment base with no food preparation, the department or its agent shall assign a retail food establishment to a license category by evaluating the complexity of the retail food establishment based on the criteria specified in Table A in this section.
ATCP 75.08(1)(a)2.
2. The department or its agent shall assign a retail food establishment, whose point value is not greater than 2.5, to the simple license category.
ATCP 75.08(1)(a)3.
3. The department or its agent shall assign a retail food establishment, whose point value is more than 2.5, but not greater than 4.5, to the moderate license category.
ATCP 75.08(1)(a)4.
4. The department or its agent shall assign a retail food establishment, whose point value is 4.5 or more, to the complex license category.
ATCP 75.08(1)(a)5.
5. If the department or its agent orders a retail food establishment closed, or it has caused a foodborne illness outbreak, the department or its agent shall immediately assign the retail food establishment to the complex category for the current and following licensing year. If no further outbreaks or closures occur, the department or its agent may reduce the license to the appropriate license category assignment.
ATCP 75.08 Note
Note: The cause of a foodborne illness outbreak is determined using standard epidemiological practices.
ATCP 75.08(1)(b)
(b) Point values for determining factors for assigning a retail food establishment's license category.
ATCP 75.08 Note
* If only “condiments” or other non-meal, ready-to-eat, non-TCS foods are offered or displayed for customer self-service, that display does not qualify as a salad or food bar, such as, but not limited to, pickles, onions, non-TCS dessert topping, relishes, garnishes, and bakery items.
ATCP 75.08 Note
** Smoking, curing, using food additives or components for preservation rather than flavor, reduced oxygen packaging, operating a molluscan shellfish life-support system, custom processing, sprouting seeds or beans, or any other method as determined by the department to require a variance.
ATCP 75.08(1)(c)
(c)
Request for different license category assignment. The license holder may ask the department or its agent to reconsider the retail food establishment's license category assignment within 30 days of the category assignment.
ATCP 75.08 Note
Note:
To request reconsideration of license category assignment, contact the Bureau of Food and Recreational Businesses at 608-224-4700 or send your written request to the Bureau of Food and Recreational businesses at P.O. Box 8911 Madison, WI 53708-8911. For an agent reconsideration, please contact the agent health department.
ATCP 75.08 Note
Note: A person applying for an annual retail food establishment license may be required to pay, in addition to the license fee listed in Table B, a weights and measures inspection fee under s.
ATCP 92.12.
ATCP 75.08(3)(a)(a)
Pre-licensing inspection fee. The applicant shall pay to the department the applicable pre-licensing inspection fee listed in Table B before a license is issued to a new retail food establishment under s.
ATCP 75.06.
ATCP 75.08(3)(b)1.1. Except as specified in subd.
2., the applicant shall pay an annual license fee to the department, as listed in Table B, for each retail food establishment that the applicant applies for a license to operate under s.
ATCP 75.06. The department or its agent shall base the annual license fee on the point values assigned to the retail food establishment under Table A.
ATCP 75.08(3)(b)2.
2. Table A does not apply to a retail food establishment serving prepackaged meals or a retail food establishment - not serving meals with only prepackaged foods, a transient retail food establishment, a mobile retail food establishment base with no food service or processing activities, a vending machine and vending machine operator, or a micro market. Fees for these retail food establishments are listed separately in Table B.
ATCP 75.08(3)(c)
(c)
Late fee. If the license holder does not pay the fee for a license renewal before the expiration date of the license, the license holder shall pay to the department the applicable late fee, as indicated in Table B, in addition to the renewal license fee.
ATCP 75.08(3)(d)
(d)
Reinspection fee. If the department reinspects a retail food establishment because the department has found a violation of ch.
97, Stats., this chapter, or its appendix during the preceding inspection, the department shall charge the license holder the reinspection fee specified in Table B. A reinspection fee is payable when the reinspection is completed, and is due upon written demand from the department. The department may issue a demand for payment when it issues a license renewal application to the license holder. If an additional reinspection is required to correct violations of ch.
97, Stats., this chapter, or its Appendix, the department shall assess an additional reinspection fee as listed in Table B.
ATCP 75.08(3)(e)
(e)
Operating without a license fee. Any license holder found to be operating a retail food establishment without a license shall pay to the department the applicable fee indicated in Table B for their designated license category. For any license holder found to be operating a vending machine without a license, the license holder shall pay to the department 3 times the annual vending machine license fee listed in Table B, in addition to all applicable fees.
ATCP 75.08 Note
Note: Anyone operating a retail food establishment without a license is also subject to a fine of not less than $100 nor more than $1,000 under s.
97.72, Stats.
ATCP 75.08(3)(f)
(f)
Fees for special condition inspections. For each inspection or consultation activity that is not directly related to the department's licensing responsibilities, the department may charge the requestor $175.
ATCP 75.08(3)(g)
(g)
Fee for operating without a certified food protection manager. The department shall charge the license holder $150 for operating without a certified food manager as defined in s.
ATCP 75.04 (7).
ATCP 75.08 Note
Note: Certified food manager requirements may be found in Chapter
12 of ch.
ATCP 75 Appendix.
ATCP 75.08(4)
(4)
Method of payment. If the applicant or license holder pays for a retail food establishment license by check or other draft drawn upon an account containing insufficient funds, the applicant or license holder shall, within 15 days after receipt of notice from the department of the insufficiency, pay all applicable fees and the financial institution's processing charges by cashier's check or other certified draft, or money order.
ATCP 75.08 History
History: CR 17-074: cr. Register July 2020 No. 775, eff. 10-25-20; correction in the numbering of (4) made under s. 13.92 (4) (b) 1., Stats., Register July 2020 No. 775. ATCP 75.10(1)(a)
(a)
Inspections. Under s.
97.12 (1) Stats., for the purpose of enforcing this chapter, the department and its agents may, at reasonable hours, enter and inspect any premises for which a license is required under this chapter or any farm, factory, warehouse, building, room, establishment or place at or in which foods are manufactured, processed, packed, packaged, stored or held for sale, and may enter any vehicle, including a vehicle used to transport or hold foods in commerce. The department and its agents may also secure samples or specimens, including samples or specimens of food and any product or substance that may affect food, examine and copy relevant documents and records, and obtain photographic and other evidence needed to enforce this chapter or a rule promulgated under this chapter. The department shall examine any samples secured and shall conduct other inspections and examinations needed to determine whether there is a violation of this chapter. The department shall pay or offer to pay the market value of samples taken.
ATCP 75.10(1)(b)
(b)
Reinspections. The department or its agent may reinspect a retail food establishment whenever an inspection or the investigation of a complaint reveals the existence of a violation that is potentially hazardous to the health and welfare of patrons or employees of the retail food establishment. The time between an inspection, investigation, and a reinspection shall be sufficient to allow the license holder time to correct the deficiencies. The department shall charge a reinspection fee, according to s.
ATCP 75.08 Table B or the applicable charges as determined by an agent. If an additional reinspection is required because the license holder has not corrected a violation, the department shall assess the license holder an additional reinspection fee according to s.
ATCP 75.08 Table B, or the applicable charges as determined by an agent. The department may order the license holder to show just cause why the license should not be suspended or revoked under s.
ATCP 75.12.
ATCP 75.10(2)(a)
(a) If upon inspection of a retail food establishment, the department or agent finds that the retail food establishment is not designed, constructed, equipped or operated as required under ch.
97 Stat., ch.
ATCP 75 or ch.
ATCP 75 Appendix, the department or agent shall issue a written order to correct the violation. The order shall specify the correction needed for compliance and the deadline by which the license holder shall make the correction. The department or agent, at its discretion, may extend the deadline specified in the order.
ATCP 75.10(2)(b)
(b) f the license holder does not make the corrections to the violations by the deadline stated in the order, or any extension of time granted for compliance, the department or agent may issue an order under s.
ATCP 75.12 to suspend or revoke the license to operate the retail food establishment.
ATCP 75.10(2)(c)
(c) Under s.
97.12 (5), Stats., any person who fails to comply with an order of the department shall forfeit $50 for each day of noncompliance after the order is served upon or directed to the person. A person may appeal a forfeiture under s.
ATCP 75.14.
ATCP 75.10(3)(a)
(a) Whenever any duly authorized inspector of the department has reasonable cause to believe that any food examined by him or her is adulterated or misbranded and is dangerous to health or misleading to the injury or damage of the purchaser or consumer, the inspector shall issue and deliver to the owner or custodian of the food a holding order prohibiting the sale or movement of the food for any purpose until the analysis or examination of the sample obtained has been completed. A holding order may be effective for a period of no longer than 14 days from the time of its delivery and it may be reissued for one additional 14-day period if necessary to complete the analysis or examination of the food.
ATCP 75.10(3)(b)
(b) No food described in a holding order issued and delivered under par.
(a) may be sold or moved for any purpose without the approval of the department until such analysis or examination has been completed within the time specified in par.
(a). Upon completion of the analysis or examination either of the following may apply:
ATCP 75.10(3)(b)1.
1. If the department upon completed analysis or examination determines that the food described in such holding order is not adulterated or misbranded, then the owner or custodian thereof shall be promptly notified in writing, and such holding order shall terminate upon notification.
ATCP 75.10(3)(b)2.
2. Where the analysis or examination shows that the food is adulterated or misbranded and is dangerous to health or misleading to the injury or damage of the purchaser or consumer, the owner or custodian of the food shall be notified in writing within the effective time of the holding order. Such notice has the effect of a special order issued under s.
93.18, Stats. Upon receipt of a notice, the food subject to the holding order may not be sold, moved, disposed of or brought into compliance with applicable standards without the approval of the department. If such food is not brought into compliance, sold, moved, or disposed of within 30 days, or other agreed upon period of time, from the date the owner or custodian received notice that the food was adulterated or misbranded, the department may issue an order directing the disposition of the food. Such an order has the effect of a special order issued under s.
93.18, Stats.
ATCP 75.10(3)(c)
(c) Any person violating an order issued under this subsection may be fined not more than the maximum amount or imprisoned not more than one year in the county jail or both. The maximum fine under this paragraph equals $10,000 plus the retail value of the product moved, sold, or disposed of in violation of the order issued under this subsection.
ATCP 75.10(4)
(4)
Special orders and orders to abate a danger to public health. As specified under s.
97.12 (3), Stats.:
ATCP 75.10(4)(a)
(a) The department may issue a special order as provided under s.
93.18 Stats., to any person engaged in the production, processing, sale, or distribution of food if the department finds a violation of this chapter or the rules promulgated under this chapter. An order shall state the violations found and shall specify a deadline for correction.
ATCP 75.10(4)(b)
(b) If the department finds that a piece of equipment, a facility, or a practice used is a danger to public health, it may order that the situation be abated or eliminated immediately and that the equipment, facility or practice not be used until the violation is corrected and the correction is confirmed by the department. The department may, instead of issuing an order, accept written agreements of voluntary compliance, which have the effect of an order.
ATCP 75.10 History
History: CR 17-074: cr. Register July 2020 No. 775, eff. 10-25-20; correction in (1) (b), (2) (a), (3) (intro.) made under s. 35.17, Stats., Register July 2020 No. 775. ATCP 75.12
ATCP 75.12 Suspension or revocation of license. The department may, by summary order and without prior notice or hearing, suspend a license issued under this chapter if the department finds that there has been a substantial failure to comply with the applicable requirements of this chapter and the rules promulgated under this chapter and that the continuation of the violations constitutes a serious danger to public health. The order shall be in writing, have the force and effect of an order issued under s.
93.18, Stats., and is subject to right of hearing before the department, if requested within 10 days after date of service.
ATCP 75.12 History
History: CR 17-074: cr. Register July 2020 No. 775, eff. 10-25-20. ATCP 75.14
ATCP 75.14 Appeals of actions by the department; right of hearing. If requested in writing within 10-days after date of the service of an order, a hearing shall be conducted within 10 days after receipt of a request for a hearing. Enforcement of the order shall not be stayed pending action on the hearing.
ATCP 75.14 History
History: CR 17-074: cr. Register July 2020 No. 775, eff. 10-25-20. ATCP 75.16
ATCP 75.16 Appeals of actions by agent health departments. If an agent issues a license under this chapter, the agent shall create and follow enforcement and appeal procedures under s.
66.0417 Stats.
ATCP 75.16 History
History: CR 17-074: cr. Register July 2020 No. 775, eff. 10-25-20. ATCP 75.18
ATCP 75.18
Qualifications of an authorized representative conducting inspections. An authorized representative of the department or its agent who inspects a retail food establishment or conducts a plan review for compliance with ch.
ATCP 75 and its Appendix shall meet the staffing qualification requirements set forth in s.
ATCP 74.08.
ATCP 75.18 History
History: CR 17-074: cr. Register July 2020 No. 775, eff. 10-25-20. ATCP 75.20(1)(1)
Refused inspection; process. If a person denies access to the department or its agent, the department or its agent shall inform the person of all the following:
ATCP 75.20(1)(c)
(c) If the license holder denies access to a retail food establishment to an authorized representative of the department or its agent, the department or its agent may apply for an inspection warrant to allow access as provided in law under s.
66.0119, Stats.
ATCP 75.20(2)
(2)
Reporting of refused access. If the person in charge continues to refuse access after the department or its agent presents credentials, provides the explanation in sub.
(1), and makes a final request for access, the department or its agent shall document details of the denial of access on an inspection report form.
ATCP 75.20(3)(a)
(a) The department or its agent shall inspect a retail food establishment at least once during the licensing period.
ATCP 75.20(3)(b)
(b) The department may approve, upon request, an increase in the interval between inspections beyond 12 months if any of the following conditions exist:
