First Regular Session 112th General Assembly (2001)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
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SENATE ENROLLED ACT No. 404




     AN ACT to amend the Indiana Code concerning health.

    Be it enacted by the General Assembly of the State of Indiana:

    SECTION 1. IC 16-18-2-51.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 51.5. "Certified food handler", for purposes of IC 16-42-5.2, has the meaning set forth in IC 16-42-5.2-4.
    SECTION 2. IC 16-18-2-80 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 80. "Corporation", for purposes of IC 16-22-8, has the meaning set forth in IC 16-22-8-2. IC 16-42-5, and IC 16-42-5.2, means the health and hospital corporation created under IC 16-22-8.
    SECTION 3. IC 16-18-2-135 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 135. (a) "Food", for purposes of IC 16-42-1 through IC 16-42-4 and IC 16-42-18, means the following:
        (1) Articles used for food, drink, confectionery, or condiment for humans.
        (2) Chewing gum.
        (3) Articles used for components of any of these articles.
    (b) "Food", for purposes of IC 16-42-5 has the meaning set forth in IC 16-42-5-1. and IC 16-42-5.2, means the following:
        (1) All articles used for food, drink, confectionery, or condiment whether simple, mixed, or compound.


        (2) All substances or ingredients used in the preparation of the items described in subdivision (1).
    SECTION 4. IC 16-18-2-137 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 137. "Food establishment", for purposes of IC 16-42-5 has the meaning set forth in IC 16-42-5-2. and IC 16-42-5.2, means any building, room, basement, vehicle of transportation, cellar, or open or enclosed area occupied or used for handling food.
    SECTION 5. IC 16-18-2-138 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 138. "Food handling", for purposes of IC 16-42-5 has the meaning set forth in IC 16-42-5-3. and IC 16-42-5.2, means producing, processing, handling, preparing, manufacturing, packing, storing, selling, distributing, or transporting of food.
    SECTION 6. IC 16-18-2-138.2 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 138.2. "Food handling machinery", for purposes of IC 16-42-5, has the meaning set forth in IC 16-42-5-2.3.
    SECTION 7. IC 16-18-2-138.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 138.3. "Food handler", for purposes of IC 16-42-5.2, has the meaning set forth in IC 16-42-5.2-5.
    SECTION 8. IC 16-19-3-4.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 4.3. Upon a showing of good cause, the executive board may grant a variance from one (1) or more of the state rules concerning:
        (1) food handling machinery; or
        (2) sanitary standards for the operation of food establishments.

    SECTION 9. IC 16-42-5-0.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 0.5. Except as provided in this chapter, a corporation or local health department may not impose any:
        (1) sanitary standards on; or
        (2) locally prescribed monetary penalties for the violation of any state law or rule concerning;
food handling or food establishments.

    SECTION 10. IC 16-42-5-0.7 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS

[EFFECTIVE UPON PASSAGE]: Sec. 0.7. (a) Except as provided in this chapter, a corporation or local health department may not impose any requirements or standards on the installation of food handling machinery in a food establishment regulated by this chapter.
     (b) The installation of food handling machinery includes all activities associated with the machinery's installation, including the wiring, plumbing, air handling, and all other processes.
    (c) This section does not limit the authority of the state fire marshal, the state building commissioner, or other state agencies to regulate food establishments.
    (d) This section does not limit the authority of a corporation or local health department to enforce requirements or standards established by state law or the state department for the installation of food handling machinery.

    SECTION 11. IC 16-42-5-0.9 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 0.9. (a) A corporation or local health department may petition the state department requesting one (1) or more modifications or changes in the state department's rules concerning:
        (1) food handling machinery;
        (2) sanitary standards for food handling or food establishments; or
        (3) civil penalties authorized under IC 16-42-5-28.
    (b) Following the receipt of a petition described in subsection (a), the state department shall hold a public hearing concerning the corporation or local health department's requested modifications or changes and shall determine in writing whether to adopt rules under IC 4-22-2 to modify or change the state department's rules.

    SECTION 12. IC 16-42-5-2.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 2.3. As used in this chapter, "food handling machinery" means any of the following used for and in food handling:
        (1) Equipment.
        (2) Appliances.
        (3) Tools.
        (4) Plumbing and related fixtures.
        (5) Refrigeration devices.
        (6) Heating, ventilation, and cooling equipment.
        (7) Any other piece of equipment used for and in food

handling.
    SECTION 13. IC 16-42-5-5.2 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 5.2. The state department may grant a variance from one (1) or more of the state rules concerning:
        (1) food handling machinery; or
        (2) sanitary standards for the operation of food establishments;
in accordance with IC 16-19-3-4.3.

    SECTION 14. IC 16-42-5-24 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 24. (a) For the purpose of enforcing IC 16-41-20, IC 16-41-21, IC 16-41-23, IC 16-41-24, IC 16-41-34, IC 16-42-5, or IC 16-42-7, the local health officers are food environmental health specialists subordinate to the state department.
     (b) The state department shall provide to the local health officers who are food environmental health specialists guidelines concerning the interpretation of the state department's rules concerning food handling and food establishments so that enforcement of the state laws and rules is uniform throughout the state.
    SECTION 15. IC 16-42-5-28 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 28. (a) The state department shall adopt rules under IC 4-22-2 establishing a schedule of civil penalties that may be imposed by the state department to enforce either of the following:
        (1) This chapter.
        (2) Rules adopted to implement this chapter.
    (b) A penalty included in the schedule of civil penalties established under this section may not exceed one thousand dollars ($1,000) for each violation per day.
    (c) The civil penalties collected under this section shall be deposited in the state general fund.
    (d) The state department may issue an order of compliance or impose a civil penalty included in the schedule of civil penalties established under this section, or both, against a person who does any of the following:
        (1) Fails to comply with this chapter or a rule adopted to implement this chapter.
        (2) Interferes with or obstructs the state department or the

state department's designated agent in the performance of duties under this chapter.
    (e) The state department may issue an order of compliance against a person described in subsection (c) under IC 4-21.5-3-6, IC 4-21.5-3-8, or IC 4-21.5-4. The state department may impose a civil penalty against a person described in subsection (c) only in a proceeding under IC 4-21.5-3-8.
    (f) A proceeding commenced to impose a civil penalty under the schedule of civil penalties established under this section may be consolidated with any other proceeding commenced to enforce either of the following:
        (1) This chapter.
        (2) A rule adopted by the state department to implement this chapter.

     (g) A corporation or a local health department:
        (1) may bring an administrative action to enforce this chapter, rules adopted to implement this chapter, or the schedule of civil penalties established by the state department under this section;
        (2) may use tickets or citations to enforce this chapter, rules adopted under this chapter, or the schedule of civil penalties established by the state department under this section; and

         (3) shall deposit in the general fund of the corporation or the local health department the civil penalties collected under this section.
     (h) For each violation of the state law or rules concerning food handling or food establishments, the state or either:
        (1) a corporation; or
        (2) a local health department;
may bring an enforcement action against a food establishment.

    SECTION 16. IC 16-42-5.2 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]:
     Chapter 5.2. Food Handlers
    Sec. 1. Except as provided in this chapter, a corporation or local health department may not impose any registration, certification, or licensing requirements on food handling or food handlers.
    Sec. 2. This chapter does not apply to a food establishment when the food establishment's food handling activities are limited solely to one (1) or more of the following:
        (1) Heating or serving precooked hot dog or sausage products, popcorn, nachos, pretzels, or frozen pizza.


        (2) Preparing or serving a continental breakfast such as rolls, coffee, juice, milk, and cold cereal.
        (3) Preparing or serving nonalcoholic or alcoholic beverages or ice.
        (4) Grinding coffee beans.
        (5) Packaging foods that are not potentially hazardous foods in accordance with rules adopted by the executive board.
        (6) Heating when it is the only preparation step for a bakery product.
        (7) Providing prepackaged food in its original package.
    Sec. 3. This chapter does not apply to the following:
        (1) Hospitals licensed under IC 16-21.
        (2) Health facilities licensed under IC 16-28.
        (3) Housing with services establishments that are required to file disclosure statements under IC 12-15.
        (4) Continuing care retirement communities required to file disclosure statements under IC 23-2-4.
    Sec. 4. As used in this chapter, "certified food handler" means a food handler who holds a certificate described in section 7 of this chapter.
    Sec. 5. As used in this chapter, "food handler" means an individual who:
        (1) is an owner, an operator, a manager, or an employee of a food establishment; and
        (2) is responsible for or oversees the storage, preparation, display, or serving of food to the public.
    Sec. 6. After December 31, 2004, at least one (1) food handler at a food establishment must be a certified food handler.
    Sec. 7. A food handler who holds a certificate recognized by the Conference for Food Protection or an equivalent nationally recognized certification program as determined by the state department of health meets the food borne illness prevention training requirements established by the state department of health.
    Sec. 8. After December 31, 2004, a food establishment must have at least one (1) certified food handler responsible for all periods of the food establishment's operation. However, a certified food handler need not be present at the food establishment during all hours of operation.
    Sec. 9. After December 31, 2004, a food establishment that begins operation or changes ownership shall comply with section 6 of this chapter not later than six (6) months after beginning

operation or changing ownership.
    Sec. 10. After December 31, 2004, if a food establishment does not have a certified food handler because a certified food handler terminates employment with the food establishment, the owner or operator of the food establishment shall comply with section 6 of this chapter not later than three (3) months after the termination date of the previous certified food handler.
    Sec. 11. After December 31, 2004, if more than one (1) food establishment operated by the same individual is located on the same property or on contiguous properties, only one (1) certified food handler is required for the food establishments.
    Sec. 12. After December 31, 2004, an individual who violates any of the provisions of this chapter is subject to the penalties prescribed by the executive board under section 13 of this chapter.
    Sec. 13. Not later than December 31, 2003, the executive board shall adopt rules under IC 4-22-2 establishing standards for:
        (1) the administration of this chapter; and
        (2) the imposition of penalties for violations of this chapter.
    Sec. 14. This chapter does not limit the authority of a corporation or local health department to license retail food establishments.
    Sec. 15. A corporation or local health department may, upon application to and approval of the state department, enforce the provisions of this chapter.

    SECTION 17. THE FOLLOWING ARE REPEALED [EFFECTIVE UPON PASSAGE]: IC 16-22-8-2; IC 16-42-5-1; IC 16-42-5-2; IC 16-42-5-3.
    SECTION 18. [EFFECTIVE UPON PASSAGE] (a) IC 16-42-5-28, as added by this act, applies to violations that occur after June 30, 2001. The state department of health may adopt rules establishing the initial schedule of civil penalties required under IC 16-42-5-28, as added by this act, at any time after the effective date of this SECTION in the manner provided for the adoption of emergency rules under IC 4-22-2-37.1. An emergency rule adopted under this SECTION expires on the later of:
        (1) the date that permanent rules are adopted to replace the emergency rules; or
        (2) July 1, 2003.

     (b) A corporation or local health department that, before January 1, 2001, adopted monetary penalties for the violation of any state or local law or rule concerning food handling or food establishments may continue to enforce those locally prescribed

monetary penalties (including the issuance of tickets or citations authorized by local law) and deposit the amounts collected as prescribed by local law until the later of:
        (1) the date that permanent rules are adopted establishing the schedule of civil penalties required under IC 16-42-5-28, as added by this act;
or
        (2) July 1, 2003.

    SECTION 19. [EFFECTIVE UPON PASSAGE] A corporation or local health department that, before January 1, 2001, adopted sanitary standards for food handling or food establishments that are different from the state rules concerning sanitary standards for food handling or food establishments may continue to enforce those locally prescribed sanitary standards until the later of:
        (1) the date that the state department adopts rules to modify or replace the state department's rules that were in effect on January 1, 2001, concerning sanitary standards for food handling or food establishments;
or
        (2) July 1, 2003.

    SECTION 20. An emergency is declared for this act.


SEA 404 _ CC 1

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