CHAPTER 4

BUSINESS REGULATIONS

   ARTICLE 4.100  COMMERCIAL ZONING

Commercial businesses shall not be built or operated on any lot except those immediately west and adjacent to State Highway 377. No business shall be operated in the remainder of the City of Krugerville.  (Ordinance 5-82 adopted 2/25/82)

   ARTICLE 4.200  TELECOMMUNICATIONS PROVIDERS

   Sec. 4.201     Definitions

Whenever used in this article, the following words and terms shall have the definitions and meanings provided in this section:

Access Line

(1)      each switched transmission path of the transmission media within the public rights-of-way extended to the end-user customer's premises network interface within the city that allows delivery of telecommunications service;

(2)      each loop provided as an unbundled network element to a person pursuant to an agreement under Section 252 of the Federal Telecommunications Act of 1996; and

(3)      each termination point of a non-switched telephone circuit consisting of transmission media connecting specific locations identified by, and provided to, the end user for the delivery of non-switched telecommunications service within the city.

Cable Service.  “Cable service” as defined in the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. Section 532 et seq.

City.  The City of Krugerville, Texas

Facilities.  All certificated telecommunications providers duct spaces, manholes, poles, conduits, underground and overhead passageways, and other equipment, structures and appurtenances and all associated transmission media, which are located in the city rights-of-way.

Direction of the City.  All ordinances, laws, rules, resolutions and regulations of the city that are not inconsistent with this article and that are now in force or may hereafter be passed and adopted.

Line Fee.  A monthly fee to be applied to each access line for the calculation of the total amount to be paid to the city as rights-of-way fee.

Permit Holder.  Any telecommunication service provider issued a permit pursuant to the terms of this article.

Person.  A natural person (an individual), corporation, company, association, partnership, firm, limited liability company, joint venture, joint stock company or association and other such entity.

Public Utility.  A public utility as that term is used in the Public Utility Regulatory Act of 1995, Tex. Utilities Code Ann., Section 11.004, including municipality owned and/or operated utilities.

Public Rights-of-Way.  The area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the municipality has an interest. The term does not include the airwaves above a right-of-way with regard to wireless telecommunications.

Rights-of-Way Fee.  The total amount paid to the city on a quarterly basis for the use and occupancy of the rights-of-way.

Telecommunications Service.  The transmittal of voice, data, image, graphics and other communications between or among points by wire, fiber optics, or other similar facilities, as well as the rental, lease, or furnishing of the facilities to accomplish such transmittal, but does not include transmission for long distance purposes (interLATA and intraLATA) or any “wireless service” as defined by law.

Certificated Telecommunications Providers. Any person that supplies telecommunications service to others within the corporate limits of the city in exchange for money or other value and is authorized by the PUC to provide local exchange telephone service in the State of Texas by way of a COA, SPCOA, or a CCN certificate.

Telecommunications Utility.  “Telecommunications utility” as used in the Public Utility Regulatory Act of 1995, Tex. Utilities Code Ann., Section 51.002(11).

Transmission Media.  Any and all of the cables, fibers, wires or other physical devices owned, maintained or placed by a permit holder to transmit and/or receive communication signals, whether analog, digital or of other characteristics, and whether for voice, data or other purposes.

Use and Occupancy.  A permit holder's acquisition, installation, construction, reconstruction, maintenance, repair, control, or operation of any facilities within the public rights-of-way for any purpose whatsoever.

   Sec. 4.202     Construction and Maintenance of Telephone Plant and Service

Pursuant to the laws of the State of Texas, the certificated telecommunications providers have the non-exclusive right and privilege to use and occupy the public rights-of-way in the city for the delivery of communications services and the operation of a communications system. The certificated telecommunications providers' facilities and transmission media used in or incident to the provision of communications services and to the maintenance of a communications business by the certificated telecommunications providers in the city shall remain as now constructed, subject to such changes as under the conditions prescribed in this article may be considered necessary to the public health and safety by the city in the exercise of its lawful police powers and such changes and extensions as may be considered necessary by the certificated telecommunications providers in the pursuit of its communications business. The terms of this article shall apply throughout the city and shall include the provision of communications services in any newly annexed areas upon the effective date of such annexation.

   Sec. 4.203     Supervision by City of Location of Poles and Conduits

(a)      All poles to be placed shall be of sound material and reasonably straight and shall be so set that they will not interfere with the flow of water to any gutter or drain, and so that the same will interfere as little as practicable with the ordinary travel on the street or sidewalk. The location and route of all poles, stubs, guys, anchors, conduits, cables and any other facilities to be placed and constructed by the certificated telecommunications providers in the construction and maintenance of its communications system in the city, and the location of all conduits to be laid by the certificated telecommunications providers within the limits of the city under this article, shall be subject to the reasonable and proper regulation, control and direction of the city council or of any city official to whom such duties have been or may be delegated.

(b)      The city expressly reserves the right to change the grade, install, relocate, or widen the public streets, sidewalks, bikeways, alleys, public thoroughfares, highways, landscaping, and public way and places within the present limits of the city and within said limits as same may from time to time be extended, and the certificated telecommunications providers shall relocate or place underground, its facilities and transmission media, in order to accommodate the installation, relocation widening, or changing of the grade of any such public street, sidewalk, bikeway, alley, public thoroughfare, highway or public ways, including if necessary relocating such facilities and transmission media to a sufficient distance from the edge of the pavement to permit a reasonable work area for machinery and individuals engaged in installing, relocating, widening, or changing the grade of any public street, sidewalk, bikeway, alley, public thoroughfare, highway or public way. If the relocation of facilities is for the purpose of widening and straightening streets or rights-of-way, the certificated telecommunications providers will relocate or remove the facilities at its own expense.

(c)      Whenever by reason of changes in the grade of a thoroughfare or in the location or manner of constructing a water pipe, gas pipe, sewer, or other aboveground or underground structure, it is deemed necessary by the city to remove, alter, change, adapt, or conform the underground or aboveground facilities of the CTP, the certificated telecommunications providers shall make the alterations as soon as practicable when ordered in writing by the city.

(d)     Whenever it shall be necessary to require certificated telecommunications providers to alter, change, adapt, or conform its facilities within the right-of-way, such alterations or changes shall be made promptly, with consideration given to the magnitude of such alterations or changes, without claim for reimbursement or damages against the city. If any such requirements impose a financial hardship upon the CTP, the certificated telecommunications providers shall have the right to present alternative proposals to the city, and the city shall give due consideration to any such alternative proposals. If the city requires the certificated telecommunications providers to adapt or conform its facilities to enable any other entity or person, except the city, to use, or to use with greater convenience, rights-of-way or public property, certificated telecommunications providers shall not be required to make any such changes until such other entity or person shall reimburse or made arrangements satisfactory to certificated telecommunications providers to reimburse the CTP for any loss and expense caused by or arising out of such change; provided, however, that the city shall never be liable for such reimbursement. Nothing in this article is intended to add to or detract from any authority granted by the legislature of the State of Texas to the city.

   Sec. 4.204     Attachments to Poles and Space in Ducts

Nothing contained in this article shall be construed to require or permit any pole attachments for electric light or power wires or communications facilities or systems not provided by the certificated telecommunications providers to be attached to the CTP's poles or other physical plant or placed in the CTP's conduit. If the city desires pole attachments for electric light or power wires or communications facilities or systems not provided by the CTP, or if the city desires to place communications facilities or systems for its internal use not provided by the certificated telecommunications providers in any certificated telecommunications providers duct, then a further separate, non-contingent agreement shall be prerequisite to such attachment(s) or such use of any duct by the city. Nothing contained in this article shall obligate or restrict the certificated telecommunications providers in exercising its rights voluntarily to enter into pole attachment, pole usage, joint ownership or other wire space or facilities agreements with light and/or power companies or with other wire using companies which are authorized to operate within the city.

   Sec. 4.205     Streets to be Restored to Good Condition

The surface of any street, avenue, alley, highway, viaduct or public ground within the city disturbed by the certificated telecommunications providers in building, constructing, renewing, or maintaining its communications system shall be restored within a reasonable time after completion of the work in compliance with the applicable provisions of the city's code and the restoration will be maintained to the satisfaction of the city council, or of any city official to whom such duties have been or may be delegated, for a period of one (1) year following completion of the restoration, after which time responsibility for the maintenance shall revert to the city. No such street, avenue, alley, highway, viaduct or public ground shall be encumbered for a longer period than shall be necessary to execute the work.

   Sec. 4.206     Temporary Removal of Aerial Wires

The certificated telecommunications providers on the request of any person shall remove or raise or lower its wires within the city temporarily to permit the moving of houses or other bulky structures. The expense of such temporary removal, raising or lowering of wires shall be paid by the benefited party or parties, and the certificated telecommunications providers may require such payment in advance. The certificated telecommunications providers shall be given not less than ninety-six (96) hours advance notice to arrange for such temporary wire changes. The clearance of wires above ground shall conform to the basic standards of the National Electrical Safety Code, National Bureau of Standards, United States Department of Commerce, as promulgated at the time of erection thereof.

   Sec. 4.207     Tree Trimming

In the pursuit of maintaining its communication system, the telephone company, its contractors, agents, successors and assigns shall have the right to trim trees upon and overhanging the streets, avenues, alleys, bridges, viaducts and public grounds of the city, so as to prevent the branches of such trees from coming into contact with the wires, cables or other facilities of the telephone company.

   Sec. 4.208     Requirement for Permit and Granting

Any person that owns, places, or maintains facilities within the public rights-of-way shall first obtain a permit pursuant to the terms of this article. Subject to the restrictions set forth herein, the city under this article shall issue permits to certificated telecommunications providers for the purpose of regulating the use and occupancy of the public rights-of-way in the city for the provision of access lines. By acceptance of the permit, a permit holder acknowledges its legal obligation to abide by the reasonable terms of this article in its use of the public rights-of-way in the provision of access lines within the city, including all operations and facilities and transmission media used in whole or in part in the provision of access lines in any newly annexed areas as specified in Section 4.202 of this article.

   Sec. 4.209     General Terms of the Article

(a)      No rights agreed to in this article by the city shall be exclusive and the city reserves the right to grant franchises, licenses, easements or permissions to use the public rights-of-way within the city to any person as the city, in its sole discretion, may determine to be in the public interest.

(b)      A permit holder is not authorized to provide cable service as a cable operator in the city under this article, but must first obtain a franchise from the city for that purpose, under such terms and conditions as may be required by law.

(c)      The rights granted by this article inure to the benefit of a permit holder licensed hereunder. The rights granted by the issuance of a permit shall not be assigned, transferred, or sold to another by a permit holder without the express written consent of the city.  Any such consent by the city shall not be withheld unreasonably.

   Sec. 4.210     Compensation to the City

(a)      As compensation for the telephone company's use and occupancy of the city's rights-of-way and for the city's oversight, regulation and supervision of such use and occupancy, in consideration for all other agreements and promises made herein by the city and in lieu of and in full compensation for any lawful tax, license, charge, right-of-way permit fee or inspection fee, whether charged to the certificated telecommunications providers or it's contractor(s), or any right-of-way easement or street or alley rental or corporate franchise tax or other character of charge for the use and occupancy of the right-of-way within the city, except the usual general ad valorem taxes and special assessments in accordance with state law, and sales taxes now or hereafter levied by the city and in accordance with state law, the city hereby imposes upon certificated telecommunications providers a fee upon which access lines (“access line fee”), shall be assessed monthly upon all access lines in the city. The access line fee shall be as provided for in the fee schedule found in the appendix of this code.

(b)     Annexation and Disannexation. Within thirty (30) days following the date of the passage of any action effecting the annexation of any property to or the disannexation of any property from the city's corporate boundaries, the city agrees to furnish each permit holder written notice of the action and an accurate map of the city's corporate boundaries showing, if available, street names and number details. For the purpose of compensating the city under this article, a permit holder shall start including or excluding access lines within the affected area in a permit holder's count of access lines:

(1)      on the effective date designated by the Comptroller of Public Accounts Texas for the imposition of state local sales and use taxes; or

(2)      thirty (30) days after the date on which a permit holder is notified by the city of the annexation or disannexation, whichever date is later.

(c)      Confidential Records. If a permit holder notifies the city of the confidential nature of any information, reports, documents, or writings, the city agrees to maintain the confidentiality of the information, reports, documents, and writings to the extent permitted by law. Upon receipt by the city of requests for a permit holder's confidential information, reports, documents, or writings, the city shall notify a permit holder of the request in writing by facsimile transmission. The city shall request and obtain an attorney general's opinion before disclosing any confidential information, reports, documents or writings and will furnish a permit holder with copies of attorney general opinion requests it makes pertaining to a permit holder's confidential information, reports, documents or writings.

(d)      No Other Fees. The payments due hereunder shall be in lieu of any permit, license, approval, inspection, or other similar fees or charges, including, but not limited to, all general business license fees customarily assessed by the city for the use of the public rights-of-way against persons operating business similar to that of a permit holder. Further, such rights-of-way fee shall constitute full compensation to the city for all of a permit holder's facilities located within the public rights-of-way, including interoffice transport and other transmission media that do not terminate at an end-user customer's network interface device, even though those types of lines are not used in the calculation of the rights-of-way fee.

(e)      Timing of Payment. A permit holder shall remit the line fee on a quarterly basis. The payment shall be due on the forty-fifth (45th) day following the close of each calendar quarter for which the payment is calculated.

(f)      Uncollectibles. A permit holder has statutory right to pass through to its customers on a pro rata basis any compensation paid to the city for access to the public rights-of-way. Any other provision of this article notwithhstanding, a permit holder shall not be obligated to pay the city for any access lines for which revenues remain uncollectible.

(g)      Facilities Provided to Other Certificated Telecommunications Providers. To the extent allowed by applicable state and federal law and certificated telecommunications providers that purchase unbundled network elements or other facilities for the purpose of creating telecommunications service for sale to persons within the city, shall pay to the city rights-of-way fee that is calculated as of month end by applying the appropriate access line fee to each access line provided. Such direct payment to the city is necessary because it is only the person creating the services that will be able to determine the number of access lines being provided, so that the rights-of-way fee imposed herein can be applied on a non-discriminatory basis to all certificated telecommunications providers that sell telecommunications service within the city. Other provisions of this article notwithstanding, a permit holder shall not include in its monthly count of access lines any unbundled network elements or other facilities provided to other certificated telecommunications providers for the provision of telecommunications services, if the certificated telecommunications providers that are providing the telecommunications services to end user customers have provided a signed statement to a permit holder that the certificated telecommunications providers are paying the access line fees applicable to those services directly to the city. If a permit holder provides a copy of the signed statement to the city, then a permit holder is absolved of all responsibility for the line fees payable on the telecommunications service, unbundled network elements, and other facilities used in the provision of those telecommunications services within the city.

(h)      Fee Application to Leased Facilities. Pursuant to Tex. Utilities Code, Section 54.206, a permit holder may collect the line fee imposed by the city pursuant to this article through a pro rata charge to the customers in the boundaries of the city, including any other persons who are leasing, reselling or otherwise using a permit holder's access lines to provide telecommunications service. With respect to any person leasing, reselling, or otherwise using a permit holder's access lines, if a permit holder believes it does not have sufficient information to determine the appropriate rate to apply, then the higher line fee shall apply until such time as the person using the access lines provides to a permit holder sufficient written information to determine the correct line fee. If a person provides sufficient written information for the application of the line fee, a permit holder may bill the person on the basis of the information provided. A permit holder shall provide to the city any information regarding the locations to which it is providing service or facilities for use by another person for the provision of telecommunications service to end-user customers, so long as city first obtains written permission of such other person for a permit holder to provide the information to the city.

   Sec. 4.211     Successors and Assigns

The rights, powers, limitations, duties and restrictions herein provided for shall inure to and be binding upon the parties hereto and upon their respective successors and assigns.

   Sec. 4.212     Period

This article shall be in full force and effect for the period beginning with the effective date hereof and ending five (5) years after such date.

   Sec. 4.213     Future Contingencies

Notwithstanding anything contained in this article to the contrary, in the event that: (1) this article or any part hereof, (2) any statutory or regulatory authority by which the certificated telecommunications providers seeks to collect the charge imposed by this article, or (3) any procedure provided in this article, or (4) any compensation due the city under this article, becomes, or is declared or determined by judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, unlawful or otherwise inapplicable, in whole or in part, the city shall enact a new ordinance that is in compliance with the authority's decision or enactment; and, unless explicitly prohibited, the new ordinance shall provide the city with a level of compensation comparable to that set forth in this article so long as such compensation is recoverable by the certificated telecommunications provider in a manner permitted by law for the unexpired portion of the term of this article.

   Sec. 4.214     Permit

Any permit holder that owns facilities already located within the public rights-of-way on the date this article is enacted is hereby granted a permit hereunder; however, within thirty (30) days from the effective date of this article all such permit holders shall provide to the city a notice of pre-existing facilities. All prospective permit holders shall file a permit application form at least thirty (30) days before placing any facilities in the public rights-of-way. A permit application form will not be accepted and a permit granted unless the applicant provides on that form the name and address of the person to whom notices hereunder are to be sent, the date on which the applicant expects to begin providing service within the city, a 24-hour per day contact number for the applicant, and the certificate number of the applicant's certificate issued by the Public Utility Commission of Texas or a notarized statement from a principal or officer of the applicant that no certification by the Public Utility Commission is required for the type of service to be offered by applicant.

   Sec. 4.215     Issuance and Effective Date of Permit

(a)     The city shall deliver a properly certified copy of this article to a permit holder, along with a permit hereunder, within fourteen (14) days after receipt of the Notice of Pre-Existing Facilities or the Permit Application Form.

(b)     The effective date for any such permit shall be the date of issuance, however, the assessment of the line fee shall not begin until the first day of the second month after the date of issuance of the permit. Permit holders with pre-existing facilities may continue the pre-existing compensation arrangement until the first day of the second month following the issuance of the permit.

   Sec. 4.216     Indemnity

(a)      Certificated telecommunications providers shall indemnify and hold the municipality and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney's fees and costs of defense), proceedings, actions, demands, causes of action, liability, and suits of any kind and nature, including personal or bodily injury (including death), property damage, or other harm for which recovery of damages is sought that is found by a court of competent jurisdiction to be caused solely by the negligent act, error, or omission of the certificated telecommunications provider, any agent, officer, director, representative, employee, affiliate, or subcontractor of the certificated telecommunications provider, or their respective officers, agents, employees, directors, or representatives, while installing, repairing, or maintaining facilities in a public right-of-way. The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the municipality, its officers, employees, contractors, or subcontractors. If a certificated telecommunications provider and the municipality are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state without, however, waiving any governmental immunity available to the municipality under state law and without waiving any defenses of the parties under state law. This section is solely for the benefit of the municipality and certificated telecommunications provider and does not create or grant any rights, contractual or otherwise, to any other person or entity.

(b)      A certificated telecommunications provider or municipality shall promptly advise the other in writing of any known claim or demand against the certificated telecommunications provider or the municipality related to or arising out of the certificated telecommunications provider's activities in a public right-of-way.

(c)      Municipalities with franchise agreements or ordinances applicable to certificated telecommunications providers in effect under a general-use ordinance adopted before January 12, 1999, and after July 1, 1998, and having 1.3 million access lines or more within the municipality on September 1, 1999, may continue to enforce the indemnity provision contained in those franchise agreements or ordinances until the earlier of the date the franchise agreements or ordinances expire or December 31, 2003. A certificated telecommunications provider providing access lines in a municipality described by this subsection is also subject to the indemnity provided by this subsection.

   Sec. 4.217     Repeal of Conflicting Provisions

All other ordinances and agreements and parts of agreements and articles in conflict with the provisions of this article are hereby repealed.

   Sec. 4.218     Venue

Venue for any proceeding under this agreement shall be in Denton County, Texas.

   Sec. 4.219     Notice

For any purpose related to this article, notice to the city shall be to:

     Mayor

     City of Krugerville, Texas

     100 Kruger Road

     Aubrey, Texas 76227-9532

Notice will be effective upon delivery at the above address until the city notifies the other, in writing, of a change of address.

(Ordinance 2000-03 adopted 11/4/99)

   ARTICLE 4.300  SOLICITORS*

   Sec. 4.301     Definitions

When used in this article, the following words shall have the meanings respectively ascribed to them by this section.

City.  The City of Krugerville, Texas.

Goods or Merchandise.  Any property of value, or commodities of commerce that can be bought or sold, or wares of any nature.

Interstate Commerce.  Soliciting, selling or taking orders for any goods, wares, merchandise, photographs, newspapers or magazines which, at the time the order is taken are in another state or will be produced in another state and shipped or introduced into this city in the fulfillment of such orders.

Itinerant Merchant.  A person who sets up and operates a temporary business within the premises of another business or any other building or location in the City of Krugerville, soliciting, selling, or taking orders for, or offering to sell or take orders for any goods or services.

Person.  As used herein shall include the singular and the plural, and shall also mean and include any person, firm, or corporation, association, club, co-partnership, or society, or any other organization.

Police Chief Code Enforcement Officer.  The chief of police of the City of Krugerville or his or her designee.

City Official.  Person acting in charge in the absence of police chief or code enforcement officer.

Residence.  Any separate living unit occupied for residential purposes by one or more persons contained within any type or building or structure.

Solicitation Activities.  The practices of solicitors as listed below.

Solicitation Transaction.  A transaction or the purchase of goods or services, payable in installments or cash, in which the solicitors engages in a personal solicitation of a sale to a person at a residence. A solicitation transaction shall not include a sale made pursuant to a pre-existing retail charge agreement, or a sale made pursuant to prior negotiations between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale; or a sale of realty in which transaction the purchaser is represented by a licensed attorney or in which the transaction is being negotiated by a licensed real estate broker.

Solicitor.  Any person, whether a resident of the City of Krugerville or not, including an employee or agent of another, traveling either by foot, automobile, truck, or some other type of conveyance, who engages in the practice of going door-to-door, house-to-house, or along any streets within the City of Krugerville.

(1)     Selling or taking orders for or offering to sell or take orders for goods, merchandise, wares, or other items of value for further delivery, or services to be performed in the future, for commercial purposes; or

(2)     Requesting contribution of funds, property, or anything of value, or the pledge of any type of future donation, or selling or offering for sale any type of property, including but not limited to goods, tickets, books and pamphlets for political, charitable, religious or other non-commercial purposes.

   Sec. 4.302     License Application

Any person who wishes to engage in home solicitation or any itinerant merchant who wishes to solicit within the city shall file a written application with the city secretary or designee. Said application shall show:

(1)     Proof of the identity and home address of the applicant and the name and address of the employer, firm, association, organization, corporation, partnership or co-partnership which such applicant represents; and

(2)      A brief description of the nature, character and quality of the goods to be sold; and

(3)     If a motor vehicle is to be used, a description of the vehicle together with the motor vehicle registration number and the license plate number; and

(4)     A description of the proposed location of the solicitation; and

(5)     The period of time the applicant so wishes to solicit, sell or take orders in the city; and

(6)     The names of other communities in which the applicant has worked as a solicitor in the past twelve (12) months; and if he or she was employed by a different company in those communities, and the name of those companies; and

(7)     Whether the applicant has been convicted within the last five (5) years for burglary, theft, fraud, robbery or rape; and

(8)     Proof of a sales tax permit issued by the state or proof that the goods sold are not subject to such sales tax; and

(9)     An itinerant merchant who makes application to offer his or her goods for sale upon private property shall provide written proof that he or she has permission to use such property from the owner, or the owner's agent; and

(10)     A license requested under this article shall be issued for the length of time requested, not to exceed three (3) months; and

(11)     Upon expiration of a permit, the solicitor or itinerant may apply for a new permit.

   Sec. 4.303     License

(a)     License Required. It shall be unlawful for any person to engage in the business of solicitor or itinerant merchant as defined in this article within the corporate limits of the City of Krugerville without first obtaining a license therefore as provided herein. It shall also be unlawful to sell or solicit as herein defined without carrying such license while engaged in such activity.

(b)     The license shall be used only by the person to whom it was issued and may not be transferred to any other person.

(c)     It shall be unlawful for any person soliciting to fail or refuse to display such license upon the request of any person demanding the same.

(d)     The cost of permit shall be as provided for in the fee schedule found in the appendix of this code.

   Sec. 4.304     Regulations

The following regulations apply to solicitors engaged in solicitation activities in the City of Krugerville.

(1)     Every person who shall comply with this article and shall sell, or offer for sale any of the articles as herein specified, shall at all times keep the same in a clean and sanitary condition, and shall also keep their wagons, vehicles, or other conveyance in a clean and sanitary condition, and they shall not sell, or offer for sale, any unwholesome articles, nor shall they give or make any false weights or measures of any of the various articles as specified and covered by this article.

(2)     It shall be unlawful for any person selling or soliciting orders for goods, wares, merchandise, services, magazines, or newspapers or subscriptions to magazines or newspapers, except as herein provided, to go in or upon the premises of a private residence in the City of Krugerville unless requested or invited to do so by the owner or occupant of the same residence for the purpose of selling or disposing of or peddling same and shall leave the premises upon request.

(3)     No person shall engage in business as a solicitor in defiance of any notice exhibited by a residence or business indication that solicitors are not welcome or not invited:

(A)     A person, desiring that no merchant or other person engage in home solicitation at his or her residence, shall exhibit in a conspicuous place upon or near the main entrance of the residence, a weather proof card, not less than two (2) inches by four (4) inches in size, containing, the words “NO SOLICITORS.” The letters shall be not less than two-thirds (2/3) of an inch in height.

(B)      Every solicitor, upon going onto any premises upon which a residence is located, shall first examine the residence to determine if any notice prohibiting solicitation is exhibited. The solicitor shall immediately depart from the premises without disturbing the occupant, unless the visit is the result of a request made by the occupant.

(4)     No solicitor, nor any person in his or her behalf, shall shout, make any cry out, blow a horn, ring a bell, or use any sound device, including any sound amplifying system or loud speaker radio upon any of the streets, alleys, parks, or other public places of the City of Krugerville or upon any private premises in the said city where sound of sufficient volume is emitted or produced therefrom to be capable of being plainly heard upon the streets, avenues, alleys, parks, or other public places, for the purpose of attracting attention to any goods, wares, or merchandise, which such license proposes to sell.

(5)     No solicitor shall have any exclusive right to any location in the public streets or rights-of-way, or alleys, nor shall he or she be permitted to operate in any congested area where his or her operations might impede or inconvenience the public. For the purposes of this article, the judgment of a city official, exercised in good faith, shall prima facie evidence as to whether the area is congested or the public or inconvenienced.

(6)      A person shall not go upon any residential premises and ring the doorbell, or rap, or knock upon the door, or create any sound in a manner calculated to attract the attention of the occupant of the residence for the purpose of engaging in or attempting to engage in a home solicitation transaction:

(A)     Before 9:00 a.m. or after 8:00 p.m. of any day Monday through Saturday; or

(B)     At any time on a Sunday, New Year's Day, July 4th, Labor Day, Thanksgiving Day or Christmas Day.

(7)     Subsection (6) shall not apply to a visit to the premises as a result of a request or an appointment by the occupant.

(8)     It shall be unlawful for any person to solicit on property owned by the City of Krugerville unless such person has entered into an agreement with the city council.

   Sec. 4.305     Suspension of License

(a)     Any license issued under this article may be suspended for any of the following reasons:

(1)     Fraud or misrepresentation in the application for a license;

(2)     Fraud or misrepresentation in the course of conducting solicitation activities;

(3)     Conducting solicitation activities contrary to the conditions of the license;

(4)     Conducting solicitation activities in such a manner as to create a public nuisance or constitute a danger to the public health, safety or welfare.

(b)     Upon suspension of a license, the City of Krugerville shall deliver notice to the license holder stating the action taken and the reasons supporting such action. The written notice shall be delivered to the license holder's place of business or mailed to the license holder's last known address.

   Sec. 4.306     Appeals

Persons who are denied licenses or whose licenses have been suspended, may appeal by filing a written notice of appeal with the Krugerville City Secretary. The appeal must be filed with (10) days after receipt of the notice of denial or suspension. The city council shall hear and determine the appeal at the next regular meeting of the council and decision of the council shall be final.

   Sec. 4.307     Renewals

Licenses may be renewed, provided an application for renewal and license fees as required under the current fee schedule are received by the city no later than the expiration date of the current license. Applications received after the date shall be processed as new applications. The city shall review each application for renewal to determine that the applicant is in full compliance with the provisions of this article. If the city finds that the application meets such requirements, the city shall issue a new license.

   Sec. 4.308     Duty of the Police, Code Enforcement Officer and\or City Official

(a)     It shall be the duty of any police officer, code enforcement officer, or any city official of the city to require any person seen soliciting, and who is not known by such officer to be duly licensed, to produce his or her license and to enforce the provisions of this article against any person found to be violating the same.

(b)     It shall be the duty of the city secretary or a designated official to issue each applicant a permit to engage in the solicitation activities set forth in the applicant's application with (5) five working days of the receipt of a completed application and prescribed fee unless it has been determined that the application is incomplete, contains false information or the person has been convicted within the last (5) years of theft, fraud, burglary, robbery, or rape. If the application contains false information or the person has been convicted, the city official shall not issue the permit.

(c)     Any person aggrieved by the action of the city official in the denial of an application for a permit shall have the right of appeal.

   Sec. 4.309     Exemptions

(a)     Exemptions From License. The provisions of this article shall not apply to:

(1)     sales made to dealers by commercial travelers or sales agents in the usual course of business, calling upon or dealing with manufactures, wholesalers, distributors or retailers at their place of business; or

(2)     licensed real estate brokers or agents; or

(3)     solicitors on the property or residence by express invitation of the occupant; or

(4)     minors under the age of seventeen (17) acting as agents of adults covered by this article or members of the Krugerville Fire Department.

(b)     Exemptions From License Fee. The following persons and/or organizations are exempt from the payment of licensing fee, but are required to obtain a license and comply with all ordinance regulations:

(1)     persons engaged in charitable, educational, or religious purposes, and the person exhibits, at the time of solicitation, documentation in writing which identifies him or her as a representative of the charitable, educational, or religious organization for whom he is soliciting; or

(2)     persons engaged in interstate commerce; providing the person has proper documents of identification.

   Sec. 4.310     Penalty

Any person, or any owner or occupant, or agent of any owner or occupant, violating any of the terms of this article shall be subject to fine upon conviction in the municipal court, such fine to be in accordance with the general penalty provision found in Section 1.109 of this code, and each and every day that the premises shall remain in a condition in violation of the terms of this article shall constitute a separate and distinct offense. Upon the trial of any person brought before the court, the court is authorized to fix a time within which any such person may be allowed to abate the violation, if in the judgment of the court, such action is deemed advisable.

(Ordinance 0-2000-06 adopted –/–/–)

   ARTICLE 4.400  GARAGE SALES

   Sec. 4.401     Definitions

Garage Sale. The sale, exchange or bartering by a home owner or occupant, of items or goods normally accumulated by a household; including all sales entitled “yard sale,” “lawn sale,” “rummage sale,” or any similar casual sale which is advertised by any means, whereby the public at large is or can be made aware of such sale. (Ordinance 2006-009 adopted 6/22/06)

   Sec. 4.402     Permits, Frequency and Restrictions

(a)     (1)     A permit number for each garage sale(s) must be obtained from city hall between the hours of 7:00 a.m. to 6:00 p.m., Monday through Thursday before the date of the sale(s).

(2)     Citizens must call city hall to obtain a verbal garage sale permit number.

(3)     Residents will notify city hall if the garage sale is cancelled.

(b)     No more than three (3) garage sales will be allowed at the same location in any calendar year.

(c)     The duration of the garage sale shall not exceed three (3) consecutive days.

(d)     No items or goods shall be purchased for the purpose of resale at said garage sale(s).

(Ordinance 2018-005 adopted 3/22/18)

   Sec. 4.403     Signage

One (1) unlighted sign not exceeding twelve (12) square feet in area shall be permitted. Said sign shall pertain to the garage sale only and shall be located on the property where the garage sale is to take place. Said sign shall be permitted for the three-day period during which the garage sale is taking place. (Ordinance 2006-009 adopted 6/22/06)

   Sec. 4.404     Exemptions

It shall be permitted that nonprofit organizations and fraternal organizations shall be exempt as to the number of sales per year as provided in this article. (Ordinance 2006-009 adopted 6/22/06)

   Sec. 4.405     Violation; Penalty

Any person, firm or corporation that violates, disobeys, neglects or refuses to comply with, or resists the enforcement of any provisions of this article shall be fined in accordance with the general provision found in Section 1.109 of this code. Each day that a violation is permitted to exist shall constitute a separate offense and shall be punishable as such. (Ordinance 2006-009 adopted 6/22/06)

(Ordinance 2005-021 adopted 12/8/05)

   ARTICLE 4.500 ALCOHOLIC BEVERAGES*

   Division 1. Generally

   Sec. 4.501     Definitions

For purposes of this article, certain terms, phrases, words and their derivatives shall be construed as specified in this section, unless the context clearly indicates or requires a different meaning. Where terms are not defined, they shall have their ordinary, accepted meanings within the context with which they are used. Webster's Third New International Dictionary of The English Language, Unabridged, copyright 1986, shall be considered as providing ordinary, accepted meanings. Words in the singular shall include the plural and the plural the singular. Words used in the masculine gender shall include the feminine and the feminine the masculine.

Alcoholic Beverage. An alcohol, or any beverage containing more than one-half of one percent of alcohol by volume, which is capable of use for beverage purposes, either alone or when diluted.

Alcoholic Beverage Establishment. A person or dealer that sells, as defined herein, alcoholic beverages.

Beer. A malt beverage containing one-half of one percent or more of alcohol by volume and not more than four percent of alcohol by weight, and does not include a beverage designated by label or otherwise by a name other than beer.

Child Care Facility. A facility licensed, certified, or registered by the department to provide assessment, care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility, for all or part of the 24-hour day, whether or not the facility is operated for profit or charges for the services it offers.

Day Care Center. A child care facility that provides care for more than 12 children under 14 years of age for less than 24 hours a day.

Dealer. This term has the same meaning as that term is used in V.T.C.A., Alcoholic Beverage Code Section 109.33, and shall include “person” as that term is defined in this section.

Open Container. A container that is no longer sealed.

Person. A natural person or association of natural persons, trustee, receiver, partnership, corporation, organization, or the manager, agent, servant, or employee of any of them.

Private school. A nongovernmental, nonpublic school, including a parochial school, that:

(1)     Offers a course of instruction for students in one or more grades from kindergarten through grade 12; and

(2)     Has more than 100 students enrolled and attending courses at a single location.

Sell. Includes any of the following activities:

(1)     Manufactures, distills, brews, sells, possesses for the purpose of sale, imports into this state, exports from this state, transports, distributes, warehouses, or stores liquor;

(2)     Solicits or takes orders for liquor; or

(3)     For the purpose of sales, bottles, rectifies, blends, treats, fortifies, mixes, or processes liquor.

   Sec. 4.502     State Law to Control

Nothing in this article shall be construed or interpreted to conflict with the V.T.C.A., Alcoholic Beverage Code (“code”). The provisions of this article shall be subject to the limitations of such code and such code shall control. The municipal court of the city shall have jurisdiction of any offense under this article and under state law only where the constitution and the general law of this state confer such jurisdiction thereon.

   Sec. 4.503     Business Hours

(a)     It is unlawful for any person or dealer to sell or deliver any alcoholic beverage except within those hours as prescribed by state law. The holder of a mixed beverage late hours permit issued by the state (or any equivalent late hours permit/license issued by the state) may offer alcoholic beverages for sale on Sunday between the hours of 1:00 a.m. and 2:00 a.m. and on any other day between the hours of 12:00 a.m. and 2:00 a.m. in accordance with state law.

(b)     It is unlawful for any person to sell or offer for sale beer or wine, except within those hours as prescribed by state law.

   Sec. 4.504     Penalty

Any person who violates or fails to comply with this article or the provisions of the state rules, and any person who is the alcoholic beverage permit holder or otherwise operates an alcoholic beverage establishment that does not comply with the requirements of this article, and any responsible officer of that alcoholic beverage permit holder, shall be guilty of a misdemeanor, and upon conviction shall be fined not more than $500.00. Each day any violation or noncompliance continues constitutes a separate offense. The regulatory authority may seek to enjoin violation of these rules.

   Secs. 4.505–4.520     Reserved

   Division 2. Permits

   Sec. 4.521     Required

(a)     No person or dealer shall sell alcoholic beverages within the city without first having applied for and been granted a valid permit issued by the city to sell alcoholic beverages. Prior to issuing a city permit to the applicant for the proposed location, the city secretary shall certify whether the location is located in an area that is wet and that the sale of alcoholic beverages at this location is not prohibited by ordinance. Upon the exhibition of a license or permit duly issued by the state to the applicant, the city secretary shall, in the name of the city, issue and deliver to the applicant a permit to engage in the business in the city of the character described in and authorized by the license or permit from the state held by the applicant. The license or permit so issued in the name of the city shall authorize the conduct of such business upon the premises described in a license or permit from the state and shall remain in force only so long as the license or permit from the state remains in force.

(b)     The city secretary shall issue and deliver a receipt under this section to the person or dealer authorizing the sale of alcoholic beverages under this article and a state permit or license, if the person or dealer:

(1)     Pays the fees established by Section 4.522; and

(2)     Exhibits the permit or license issued by the state.

(c)     The city secretary shall keep a record of all permits issued under this article.

(d)     A permit shall be cancelled if the state license or permit is revoked.

   Sec. 4.522     Fees

(a)     Unless state law exempts a person from payment of a fee established by this section, a person or dealer must pay the city an annual permit or license fee of one-half (1/2) the amount of the state fee for each permit and license authorizing the sale of alcoholic beverages.

(b)     A person or dealer shall pay the fees established under subsection (a) to the city no later than the 30th day after the date the person's payment of a state permit or license fee is due.

(c)     A person who sells an alcoholic beverage at a business location before the person pays the fees established by this section commits a class C misdemeanor punishable by a fine of not less than $10.00 nor more than $200.00.

   Secs. 4.523–4.540     Reserved

   Division 3. Locations of Sale and Consumption

   Sec. 4.541     Sale of Alcoholic Beverages Prohibited Near Public Schools, Private Schools, Churches, or Hospitals

(a)     It shall be unlawful for any dealer to sell alcoholic beverages from or at a place of business within this city within 300 feet of a church, public or private school, or public hospital.

(b)     This section does not apply to the holder of:

(1)     A license or permit who also holds a food and beverage certificate covering premises that is located within 300 feet of a private school; or

(2)     A license or permit covering premises where minors are prohibited from entering under V.T.C.A., Alcoholic Beverage Code Section 109.53 and that is located within 300 feet of a private school.

(c)     The measurement of the distance between the place of business where alcoholic beverages are sold and the church or public hospital shall be along the property lines of the street fronts and from front door to front door, and in direct line across intersections.

(d)     The measurement of the distance between the place of business where alcoholic beverages are sold and the public or private school shall be:

(1)     In a direct line from the property line of the public or private school to the property line of the place of business, and in a direct line across intersections; or

(2)     If the permit or license holder is located on or above the fifth story of a multistory building, in a direct line from the property line of the public or private school to the property line of the place of business, in a direct line across intersections, and vertically up the building at the property line to the base of the floor on which the permit or license holder is located.

   Sec. 4.542     Sales of Alcoholic Beverages Prohibited Near Day-Care Centers and Child-Care Facilities; Exception

(a)     It shall be unlawful for any holder of a wine and beer retailer's permit, mixed beverage permit, late hours mixed beverage permit, private club registration permit, retail dealer's on-premises license, or brewpub license who does not hold a food and beverage certificate to sell alcoholic beverages from or at a place of business within this city within 300 feet of a day care center or child care facility.

(b)     This section does not apply to a permit or license holder who sells alcoholic beverages if:

(1)     The permit or license holder and the day care center or child care facility are located on different stories of a multistory building; or

(2)     The permit or license holder and the day care center or child care facility are located in separate buildings and either the permit or license holder or the day care center or child care facility is located on the second story or higher of a multistory building.

(c)     This section does not apply to a foster group home, foster family home, family home, agency group home, or agency home as those terms are defined by V.T.C.A., Human Resources Code Section 42.002.

(d)     The measurement of the distance between the place of business where alcoholic beverages are sold and the day care center or child care facility shall be:

(1)     In a direct line from the property line of the day care center or child care facility to the property line of the place of business, and in a direct line across intersections; or

(2)     If the permit or license holder is located on or above the fifth story of a multistory building, in a direct line from the property line of the day care center or child care facility to the property line of the place of business, in a direct line across intersections, and vertically up the building at the property line to the base of the floor on which the permit or license holder is located.

   Sec. 4.543     Sale of Beer Prohibited in Residential Areas

It shall be unlawful for any person or dealer to sell beer in residential areas within the city.

   Sec. 4.544     Consumption of Alcoholic Beverage and Possession of an Open Container Near Public or Private Schools; Exception

(a)     A person commits an offense if the person possesses an open container or consumes an alcoholic beverage on a public street, public alley, or public sidewalk within 1,000 feet of the property line of a facility that is a public or private school, including a parochial school, that provides all or any part of pre-kindergarten through 12th grade.

(b)     This section does not apply to the possession of an open container or the consumption at an event duly authorized by appropriate authorities and held in compliance with all other applicable provisions of this article.

(Ordinance 2009-009 adopted 3/25/09)

   ARTICLE 4.600 OIL AND GAS DRILLING AND EXPLORATION

   Sec. 4.601     Prohibited on Park Property

(a)     Oil and gas drilling and exploration shall be prohibited on all park property within the city limits. For purposes of this prohibition, park property shall be defined as a protected public access area, in its natural or semi-natural state or planted, and set aside for human recreation and enjoyment. Private property shall not be encompassed within this prohibition.

(b)     Any person, firm or corporation violating any of the provisions or terms of this section or this code as amended hereby shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed the sum of two thousand dollars ($2,000.00) for each offense, and each and every day such violation shall continue shall constitute a separate offense.

(Ordinance 2009-001 adopted 1/20/09)

   ARTICLE 4.700 FOOD AND FOOD ESTABLISHMENTS

   Sec. 4.701     Adoption of Texas Food Establishment Rules

The city council hereby adopts, for the purpose of establishing rules and regulations for food service sanitation, including permits and penalties, the Texas Department of Health, Division of Food and Drugs, “Rules on Texas Food Establishments 229.161-229.171 and 229.173-229.175” (“state rules”), current copies of which may be obtained on the Texas Department of Health website. Provided, that the words “municipality of” in such state rules shall be understood to refer to the city, or its authorized representative. Such rules are incorporated as fully as if set out at length herein, provided that all amendments to the rules adopted in this article shall take effect, and the provisions thereof shall be controlling within the jurisdictional limits of the city.

   Sec. 4.702     Purpose

The purpose of this article is to safeguard public health and provide to consumers food that is safe, unadulterated, and honestly presented.

   Sec. 4.703     Definitions

For purposes of this article, certain terms, phrases, words and their derivatives shall be construed as specified in this section, unless the context clearly indicates or requires a different meaning. Where terms are not defined, they shall have their ordinary, accepted meanings within the context with which they are used. Webster's Third New International Dictionary of The English Language, Unabridged, copyright 1986, shall be considered as providing ordinary, accepted meanings. Words in the singular shall include the plural and the plural the singular. Words used in the masculine gender shall include the feminine and the feminine the masculine.

Food Establishment. An operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption:

(1)     Such as a restaurant, retail food store, satellite or catered feeding location, catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people, market, vending location, conveyance used to transport people, institution, day care, public or private school cafeteria, or food bank; and

(2)     That relinquishes possession of food to a consumer directly, or indirectly through a delivery service such as home delivery of grocery orders or restaurant takeout orders, or delivery service that is provided by common carriers.

This definition of a food establishment includes:

(1)     An element of the operation such as a transportation vehicle or a central preparation facility that supplies a vending location or satellite feeding location unless the vending or feeding location is permitted by the regulatory authority; and

(2)     An operation that is conducted in a mobile, stationary, temporary, or permanent facility or location; where consumption is on or off the premises; and regardless of whether there is a charge for the food.

Regulatory Authority. The city code enforcement officer or other authorized agent or employee of the city designated by the mayor.

   Sec. 4.704     Permits and Exceptions

(a)     A person may not operate a food establishment without a permit issued by the regulatory authority. Permits are not transferable from one person to another or from one location to another location, except as otherwise permitted by this article. A valid permit must be posted in or on every food establishment regulated by this article.

(b)     A food establishment operated solely by a nonprofit organization is exempt from the permitting fee requirements of this article, but is not exempt from obtaining a permit. The regulatory authority may require any information necessary to determine whether an organization is nonprofit for the purpose of this exemption.

(c)     Temporary food permits may be obtained for food events held from one (1) to five (5) days.

   Sec. 4.705     Application for Permit; Fees

(a)     Any person desiring to operate a food establishment must make a written application for a permit on forms provided by the regulatory authority. The application must contain the name and address of each applicant, the location and type of the proposed food establishment and the applicable fee. The applicant shall provide documentation demonstrating that all employees have received either a food handler permit or food manager certification, as set forth in Sections 4.716 and 4.717 of this article. An incomplete application will not be accepted. Failure to provide all required information, or falsifying information required may result in denial or revocation of the permit.

(b)     Renewal. The application for a renewal permit and the accompanying fee must be received by the regulatory authority on or before December 31 prior to the calendar year for which the permit is sought. If such application and fee are not received by the date herein specified, the renewal fee due and owing shall be double the normal permit fee as set forth in subsection (d) of this section, as a late penalty for failure to comply with the requirements of this subsection. The charging of such late fee will have no effect on the city's right to seek criminal penalties permitted by the enforcement provision of this article. Renewal applications shall contain the same information as provided on the application for the initial permit.

(c)     Prior to the approval of an initial permit or the renewal of an existing permit, the regulatory authority shall inspect the proposed food establishment to determine compliance with state laws and rules. A food establishment that does not comply with state laws and rules will be denied a permit or the renewal of a permit.

(d)     The fee for permits issued under this article shall be as set forth in the fee schedule found in the appendix of this code.

   Sec. 4.706     Review of Plans

(a)     Whenever a food establishment is constructed or extensively remodeled and whenever an existing structure is converted to use as a food establishment, properly prepared plans and specifications for the construction, remodeling or conversion shall be submitted to the regulatory authority for review before construction, remodeling or conversion begins. Extensive remodeling means that twenty percent (20%) or more of the establishment area, which shall be defined to include the dining, kitchen, storage, food preparation and support areas to determine the total square footage of the establishment area, of the food establishment is to be remodeled. The plans and specifications shall indicate the proposed layout, equipment and arrangement, mechanical plans and construction of materials of work areas, and the type and model of proposed fixed equipment and facilities. The plans and specifications will be approved by the regulatory authority if they meet the requirements of the rules adopted by this article. No food establishment shall be constructed, extensively remodeled or converted, except in accordance with plans and specifications approved by the regulatory authority.

(b)     Failure to follow the approved plans, and specifications will result in a permit denial, suspension, or revocation.

(c)     Whenever plans and specifications are required by subsection (a) of this section to be submitted to the regulatory authority, the regulatory authority shall inspect the food service establishment prior to its beginning operation, to determine compliance with the approved plans and specifications and with the requirements of this article.

   Sec. 4.707     Suspension of Permit

(a)     The regulatory authority may, without warning, notice, or hearing suspend any permit to operate a food establishment if the permit holder does not comply with the requirements of this article, if the operation of the food establishment constitutes an imminent hazard to public health or if the operation of the food service establishment otherwise constitutes a substantial hazard to public health. Suspension is effective upon service of the notice, if notice is provided pursuant to Section 4.709 of this article. When a permit is suspended, food operations shall immediately cease. Whenever a permit is suspended, the holder of the permit shall be afforded an opportunity for a hearing within twenty (20) days of receipt of a request for a hearing.

(b)     Whenever a permit is suspended, the holder of the permit or the person in charge shall be notified in writing that the permit is, upon service of the notice, immediately suspended and that an opportunity for a hearing will be provided if a written request for a hearing is filed with the regulatory authority by the holder of the permit within ten days. If no written request for hearing is filed within ten (10) days, the suspension is sustained. The regulatory authority may end the suspension at any time if the reasons for the suspension no longer exist.

   Sec. 4.708     Revocation of Permit

(a)     The regulatory authority may, after providing opportunity for a hearing, revoke a permit for serious or repeated violations of any of the requirements of these rules or for interference with the regulatory authority in the performance of its duties. Prior to revocation, the regulatory authority shall notify the holder of the permit or the person in charge, in writing, of the reason for which the permit is subject to revocation and that the permit shall be revoked at the end of the ten (10) days following service of the notice unless a written request for a hearing is filed with the regulatory authority by the holder of the permit within the ten-day period.

(b)     If no request for hearing is filed within the ten-day period, the revocation of the permit becomes final.

   Sec. 4.709     Service of Notice

A notice provided for in this article is properly served when it is delivered to the holder of the permit, the person in charge, or when it is sent by registered or certified mail, return receipt requested, to the last known address of the permit holder. A copy of the notice shall be filed in the records of the regulatory authority.

   Sec. 4.710     Hearing

The hearings provided for in this article shall be conducted by the regulatory authority, at a time and place designated by him. Based upon the recorded evidence of such hearing, the regulatory authority shall make a final finding, and shall sustain, modify or rescind any notice or order considered in the hearing. A written report of the hearing decision shall be furnished to the holder of the permit by the regulatory authority.

   Sec. 4.711     Application after Revocation

Whenever a revocation of a permit has become final, the holder of the revoked permit may make written application for a new permit.

   Sec. 4.712     Examination and Condemnation of Food

Food may be examined or sampled by the regulatory authority as often as necessary for enforcement of this article. The regulatory authority may, upon written notice to the owner or person in charge, specifying with particularity the reasons therefor, place a hold order on any food which it believes is in violation of Texas Department of Health “Texas Food Establishment Rules,” or any other provision of this article. The regulatory authority shall tag, label, or otherwise identify any food subject to the hold order. No food subject to a hold order shall be used, served or moved from the establishment. The regulatory authority shall permit storage of the food under conditions specified in the hold order, unless storage is not possible without risk to the public health, in which case immediate destruction shall be ordered and accomplished. The hold order shall state that a request for a hearing may be filed within ten days and, that if no hearing is requested, the food shall be destroyed. A hearing shall be held if so requested, and on the basis of evidence produced at the hearing, the hold order may be vacated, or the owner or person in charge of the food may be directed by written order to denature or destroy such food, or to bring it into compliance with the provisions of this article.

   Sec. 4.713     Inspections; Frequency, Regulatory Authority's Right of Access

(a)     An inspection of food service establishment shall be performed at least once every six (6) months. Additional inspections of the food service establishment shall be performed as often as are necessary for the enforcement of this article.

(b)     Agents of the regulatory authority, after proper identification, shall be permitted to enter any food service establishment at any reasonable time, for the purpose of making inspections to determine compliance with this article. The agents shall be permitted to examine the records of the establishments to obtain information pertaining to food and supplies purchased, received, or used, or to persons employed.

   Sec. 4.714     Inspections; Report

(a)     Contents; Rating Score. Whenever an inspection of a food service establishment is made, the findings shall be recorded on the inspection report form referenced in subsection (b) of this section. The inspection report form shall summarize the requirements of these rules and shall set forth a weighted point value for each requirement. Inspection remarks shall be written to reference, by section number, the section violated and shall state the correction to be made. The rating score of the food establishment shall be the total of the weighted point values for all violations, subtracted from one hundred (100). A copy of the inspection report form shall be furnished to the person in charge of the establishment, at the conclusion of the inspection. The completed inspection report form is a public document that shall be made available for public disclosure to any person who requests it according to law.

(b)     Inspection Report Form. An inspection report form is based on the requirements of these rules, is adopted by reference, and is on file in the regulatory authority's office.

   Sec. 4.715     Inspections; Correction of Violations

(a)     Time Period for Inspections. The inspection report form shall specify a reasonable period of time for the correction of the violation found, and correction of the violations shall be accomplished within the period specified, in accordance with the following provisions:

(1)     If an imminent health hazard exists, such as complete lack of refrigeration, or sewage backup into the establishment, the establishment shall immediately cease food service operations. Operations shall not be resumed until authorized by the regulatory authority.

(2)     All violations of four- or five-demerit items shall be corrected immediately.

(3)     All three-demerit violations shall require immediate corrective action, not to exceed ten (10) days.

(4)     Other violations require corrective action, not to exceed ninety (90) days or the next inspection, whichever comes first.

(5)     In the case of temporary food service establishments, all violations shall be corrected immediately. If violations are not corrected immediately, the establishment shall immediately cease food service operation, until authorized to resume by the regulatory authority.

(b)     Follow-Up Inspection.

(1)     Required. A follow-up inspection shall be required under the following conditions described below:

(A)     Lack of potable water.

(B)     Inadequate amount of refrigeration.

(C)     Sewage back-up.

(D)     Lack of sanitation, which is defined as a score of 69 or below.

(E)     Lack of hot water.

(F)     Extended interruption of electrical or water.

(G)     Misuse of poisonous/toxic chemicals.

(H)     On-set of an apparent food-borne disease outbreak.

(I)     Fire/flood.

(J)     Failure to exclude an infectious employee.

(K)     Other conditions which affect public health.

(L)     Noncompliance Issue. Any violation documented in three consecutive inspections will require a follow-up inspection within forty-eight (48) hours.

(2)     Fee. Subsections (b)(1)(A)–(L) of this section are also considered substantial health hazards and could result in immediate suspension of permit. If a follow-up inspection is required there will be a fee for such service as provided for in the fee schedule found in the appendix of this code, which is due prior to the initiation of the follow-up inspection. If a follow-up inspection is required and the fee is not paid, the permit will be suspended/revoked.

(c)     Failure to Comply with Time Limits for Corrections. The inspection report shall state that failure to comply with any time limits for corrections may result in cessation of food service operations. An opportunity for appeal from the inspection findings and time limitations will be provided if a written request for a hearing is filed with the regulatory authority within ten (10) days following cessation of operations. If a request for a hearing is received, a hearing shall be held within twenty (20) days of receipt of such request.

(d)     Required to Cease Operations. Whenever a food service establishment is required under the provisions of this rule to cease operations, it shall not resume operations until such time as a re-inspection determines that conditions responsible for the requirement to cease operations no longer exist. Opportunity for re-inspection shall be offered within a reasonable time. The fee for a re-inspection shall be the same as for a follow-up inspection.

   Sec. 4.716     Food Handler's Permit

(a)     Required. Each person working in a food establishment, handling food, shall obtain a valid food handler's permit. It is an offense for an employee to begin to work or for an employer to hire any person who does not have a permit by the first day of employment. This permit is to be issued by the county health department in accordance with all requirements for such instruction and/or examinations for disease as the health authority may designate. The permit shall be valid for such a time as the health authority may designate, but not to exceed four (4) years. The permit shall be kept on file by the county health authority, which shall in turn issue to the food handler a card attesting to the validity of the permit.

(b)     Posting. Original or copy of the food handler's permit shall be posted or kept on site by management and made available to the regulatory authority.

   Sec. 4.717     Food Manager Certification

(a)     Employment of Registered Food Manager. A food service establishment shall employ at least one (1) person who is a fulltime, on-site supervisory employee who is responsible for food preparation and service and who has a valid and current food manager certificate of registration issued by the regulatory authority.

(1)     A food service establishment is in compliance with this section if there is at least one (1) fulltime registered food manager employed in a supervisory capacity.

(2)     Food service establishments that serve, sell, or distribute only prepackaged foods are exempt from the provisions of this section.

(b)     Termination or Permanent Transfer of Registered Food Service Manager. If a food service establishment cannot meet the requirements of subsection (a)(1) of this section because of the termination or permanent transfer of a registered food service manager, the food service establishment shall:

(1)     Notify the regulatory authority in writing within ten (10) days of the effective date of termination or permanent transfer of the registered food manager; and

(2)     Employ another registered food manager or employ a manager currently attending the food manager certification course within twenty (20) days of the effective date of termination or permanent transfer of the previous registered food manager.

(c)     Requirements of Food Manager Certification Course; Issuance of Document of Certification. The regulatory authority shall issue a food manager certificate of registration to any person who submits the required application, pays the required fee, and provides evidence of completion of the food manager certification course. The food manager certification course shall meet the following minimum criteria:

(1)     The course shall be taught by a person adequately trained in sanitary food handling who:

(A)     Is a registered professional sanitarian in the state or is registered by the National Environmental Health Association;

(B)     Possesses an earned four-year (or greater) college degree in the life sciences, food science or nutrition; or

(C)     Has a combination of formal education and experience which meets the approval of the regulatory authority.

(2)     The course shall be taught in a formal classroom setting for a minimum of fifteen (15) instructional hours.

(3)     The course shall require completion of a thorough examination with a score of seventy percent (70%) or greater accepted as passing. The examination may be taken no more than two (2) times unsuccessfully before the applicant is required to repeat the course.

(4)     The course curriculum shall include the following topics: food temperature requirements, types of food-borne illnesses, food microbiology, infectious diseases transmittable through food, disease reporting, prevention of contamination, vermin control, approved food sources, and personal hygiene of food handlers.

(5)     Persons successfully completing the course shall be given a written document of certification by the course provider for registration by the regulatory authority.

(d)     Term, Evidence of, and Transfer of Certificate of Registration.

(1)     A food manager certificate of registration expires three (3) years from the date of issuance unless revoked sooner by the regulatory authority.

(2)     The food manager certificate of registration issued by the regulatory authority shall be posted in clear view of customers while the registered food manager is on duty at a food service establishment.

(3)     A food manager certificate of registration may be renewed for a subsequent three-year period if the applicant for renewal within thirty (30) days before expiration of the current registration, pays to the regulatory authority the required fee, and provides evidence that within the six months prior to submitting the application for renewal he or she has attended a food manager certification course approved by the regulatory authority or has received a passing score on a national examination for certification of food managers that meets the requirements of the United States Food and Drug Administration.

(4)     A food manager certificate of registration is not transferable.

(e)     Registration or Renewal Denial; Registration Revocation. The regulatory authority may refuse to issue or renew a food manager certificate of registration or may revoke a food manager registration if the application or holder:

(1)     Has been convicted of interfering with the lawful inspection of a food service establishment;

(2)     Makes a false statement of material fact in the application for registration or renewal of registration; or

(3)     Was employed as a food manager of a food service establishment where the establishment's food service permit was suspended two (2) or more times within a two-year period or where the establishment's food service permit was revoked.

(f)     Appeal of Denial or Revocation; Hearing. The decision of the regulatory authority to deny issuance or renewal or to revoke a food manager certificate of registration may be appealed within ten (10) days of the denial or revocation. A hearing before the regulatory authority shall be conducted at a time and place designated by the regulatory authority. Based upon the recorded evidence of such hearing, the regulatory authority shall make a final finding, and shall either deny or allow issuance, deny or allow renewal, or revoke or maintain a food manager certificate of registration. A written report of the hearing decision shall be furnished by the regulatory authority to the holder of, or applicant for, the food manager certificate of registration.

(g)     Fees. The fees for obtaining or renewing a food manager certificate of registration and for replacing a lost, stolen, or damaged certificate of registration shall be set from time-to-time by state board of health rule.

   Sec. 4.718     Procedure When Infection is Suspected

When the regulatory authority has reasonable cause to suspect the possibility of disease transmission from any food service establishment employee, the regulatory authority may secure morbidity history of the suspected employee, or make any other investigation as may be indicated, and shall take appropriate action. The regulatory authority may require any or all of the following measures:

(1)     The immediate exclusion of the employee from all food service establishments;

(2)     The immediate closing of the food service establishment concerned until, in the opinion of the regulatory authority, no further danger of disease outbreak exists;

(3)     Restriction of the employee's services to some area of the establishment where there would be no danger of transmitting disease;

(4)     Adequate medical and laboratory examination of the employee, of other employees, and of his or her body discharges.

   Sec. 4.719     Grease Traps

(a)     All food establishments must be equipped with a grease trap. A plumbing permit must be obtained by a licensed plumber from the city prior to installation of the grease trap. Grease traps will be installed and sized in accordance with the city plumbing code.

(b)     Grease traps installed in food establishments shall be located outside the establishment unless approved in writing by the building official, director of public works, city secretary or his authorized representative. A grease trap may not be installed in any part of the building where food is handled. A grease trap shall be located in a manner so that the grease trap is easily accessible for cleaning.

(c)     All grease trap waste shall be pumped and removed, and its tanks thoroughly cleaned no less than once every three (3) months (90 days). Any deviation from this schedule must be granted in writing from the regulatory authority. The regulatory authority may require additional pumping, increase the frequency of cleanings, or require immediate pumping of a grease trap if it deems it necessary in order to prevent grease from entering the city sanitary sewer system. Any establishment who utilizes microorganisms in any grease trap within the city will still be required to comply with the aforementioned pumping schedule.

(d)     All grease waste must be transported by a grease waste hauler licensed by the Texas Commission on Environmental Quality (“TCEQ”). The grease hauler is responsible for proper disposal of grease waste in an approved permitted site. It is the responsibility of the grease hauler to forward a copy of each waste trip ticket to the regulatory authority.

(e)     Mobile food vendors, roadside vendors, temporary food establishments, day care centers, churches, and concession stands are exempt from the requirement of grease traps. The regulatory authority may grant other exceptions based upon food operations, in compliance with TCEQ requirements and state law.

   Sec. 4.720     Vent-a-Hood Systems

(a)     Equipment. All food establishments whose cooking equipment used in processed producing smoke or grease-laden vapors shall be equipped with an exhaust system that complies with all the equipment and performance requirements of the NFPA96 code (National Fire Protection Association Code) and all equipment and performance shall be maintained per the NFPA96 code during all periods of operation of the cooking equipment. Specifically, the following equipment shall be kept in good working condition: cooking equipment, hoods, ducts, fans, fire suppression systems, and special effluent or energy control equipment. All airflows shall be maintained. Maintenance and repairs shall be performed on all components at intervals necessary to maintain these conditions. At least one manual fire extinguisher shall be mounted on a wall within the kitchen area for secondary protection.

(b)     Cleaning.

(1)     The entire exhaust system shall be inspected and cleaned by a properly trained, qualified, and certified company or person(s) acceptable to the regulatory authority. Hoods, grease removal devices, fans, horizontal and vertical ducts to the roof, and other appurtenances shall be cleaned to bare metal, prior to surfaces becoming heavily contaminated with grease or oily sludge. The chart below indicates the required cleaning schedule.

Type of Volume of Cooking

Frequency

  

Establishments serving solid fuel cooking operations

Monthly

Systems serving high-volume cooking. Operations such as a 24-hour cooking, charbroiling or work cooking

Quarterly

Systems serving moderate-volume cooking operations

Semi-annually

Systems serving low-volume cooking operations, such as churches, day camps, seasonal businesses, or senior centers

Annually

(2)     The regulatory officer may require additional cleaning or increase the frequency of cleaning if he deems necessary in order to prevent fire hazard. After the exhaust system is cleaned to bare metals, it shall not be coated with powder or other substance. Care shall be taken not to apply cleaning chemicals on fusible links or other detection devices of the automatic extinguishing system. After cleaning is completed, the vent cleaning contractor shall place a label on the vent-a-hood indicating the date cleaned and the name of the servicing company. A certificate showing the cleaning date shall be maintained on the premises, and a copy forwarded to the regulatory officer office.

(c)     Inspection. An inspection and servicing of the fire extinguishing system and listed exhaust hoods shall be made at least once every six (6) months by properly trained and qualified persons. Certification tags indicating date inspected should be posted at the pull station and on the vent-a-hood unit. A certificate showing the inspection and servicing date shall be maintained on the premises, and a copy forwarded to the regulatory authority's office.

   Sec. 4.721     Heimlich Maneuver Poster

(a)     All food establishments must have a poster posted depicting the Heimlich Maneuver for dislodging an obstruction from a choking person. The prescribed sign shall be in a place conspicuous to employees or customers.

(b)     The Heimlich Maneuver sign shall meet the following poster requirements:

(1)     The poster shall be printed on white seventy (70) pound gloss coated cover stock and shall be no smaller than fifteen (15) inches wide by eighteen (18) inches long;

(2)     The poster shall be printed in English and Spanish and in at least two conspicuous contrasting colors. Major title and figure blocks shall be in contrasting color to remaining color blocks;

(3)     Major poster headings shall be a minimum Bengeat Bold 72-point font or equivalent;

(4)     Subheadings shall be a minimum Bengeat Bold Italic 60-point font or equivalent;

(5)     Remaining subheadings shall be a minimum Bengeat Bold 24-point font or equivalent; and

(6)     Body copy shall be Helios Bold 14-point font or equivalent.

   Sec. 4.722     Penalty

Any person who violates or fails to comply with this article or the provisions of the state rules, and any person who is the permit holder of or otherwise operates a food service establishment that does not comply with the requirements of this article, and any responsible officer of that permit holder, shall be guilty of a misdemeanor, and upon conviction shall be fined not more than $2,000.00. Each day any violation or noncompliance continues constitutes a separate offense. The regulatory authority may seek to enjoin violation of these rules.

(Ordinance 2009-008 adopted 3/25/09)