S2615

An Act concerning the licensure of packaged ice plant operators and packaged ice dealers, supplementing Title 24 of the Revised Statutes and amending P.L.1964, c.142.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) This act shall be known and may be cited as the “Packaged Ice Plant Operator and Packaged Ice Dealer Licensing Act.”

2. (New section) As used in this act:

“Commissioner” means the commissioner of the Department of Health of the State of New Jersey.

“Packaged ice” means frozen water offered for sale for human consumption.

“Packaged ice plant” means any place, premises, or establishment where a person is engaged in the production, processing, or packaging of ice for wholesale distribution or sale directly to the consumer and shall include rooms and premises where machines, utensils, and packaging are washed, sanitized, or stored.

“Packaged ice dealer” means a person engaged in the sale of packaged ice to consumers and retailers.

“Person” means an individual, corporation, partnership, association or any other business entity.

“Source water” means water from a spring, artesian well, drilled well, public water system, public community water system, or any other source which is used for or in connection with the production of packaged ice.

3. (New section) a. Pursuant to R.S.24:2-1, the commissioner shall promulgate standards governing the manufacturing, storage, and distribution of packaged ice, which shall include, but not be limited to, standards addressing processing, packaging, storage, and distribution methods necessary to prevent the contamination of packaged ice or its packaging materials and recall procedures for contaminated packaged ice.

b. (1) Packaged ice which is manufactured, distributed, or sold within this State shall comply with the regulations concerning drinking water quality standards adopted by the Department of Environmental Protection pursuant to the “Safe Drinking Water Act,” P.L.1977, c.224 (C.58:12A-1 et seq.) and all water used for the manufacture of packaged ice shall be from an approved drinking water supply in this State or from an approved drinking water supply in the state in which the packaged ice is manufactured.

(2) Packaged ice plants and packaged ice dealers who are also packaged ice plants shall conduct quarterly testing of packaged ice to determine the presence of: (a) hazardous contaminants identified pursuant to section 2 of P.L.1983, c.443 (C.58:12A-13); and (b) fecal and total coliform organisms and heterotrophic plate count. Total coliforms shall not be greater than 2.2 organisms per 100 milliliters using the most probable number method or not greater than one organism per 100 milliliters using the membrane filtration method. The heterotrophic plate count shall not exceed 500 colonies per milliliter. Packaged ice shall not contain fecal coliform-positive samples.

(3) All tests required pursuant to this section shall be conducted in accordance with sampling and testing methods and techniques established by the Commissioner of Environmental Protection, with the testing to be conducted by a laboratory certified for this purpose by the commissioner.

(4) Testing shall be conducted prior to the issuance of a packaged ice plant license pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).

(5) Except as provided in paragraph 7 of subsection b. of this section, any packaged ice plant manufacturing ice outside of this State shall forward to the department a copy of all results of tests required to be conducted pursuant to this act. The certified laboratory conducting the potability tests may, upon written approval by the department, submit the test results on behalf of the packaged ice plant.

(6) Except as provided in paragraph (7) of subsection b. of this section, any packaged ice plant or dealer operating within this State shall maintain a copy of all results of tests required to be conducted pursuant to this act for seven years and shall make the test results available to the department upon request.

(7) If the quarterly test results indicate the presence of fecal matter in any sample, the packaged ice plant or dealer shall submit samples to an approved laboratory for testing on a weekly basis until two consecutive negative tests are obtained. The packaged ice plant shall submit all test results conducted pursuant to this paragraph to the department.

4. (New section) a. Any person owning or operating a packaged ice plant or acting as a packaged ice dealer within this State shall hold a valid license issued by the Department of Health pursuant to the provisions of this act.

b. All licenses shall be issued for a one-year period upon the payment of the licensure fee prescribed by the department, and shall be renewed upon the filing of a renewal application and the payment of a licensure fee.

c. The department shall:

(1) prior to issuing a license, ensure that all applicants adhere to the standards set forth under or promulgated pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill) and provide documentation confirming that any source water used in the manufacture of packaged ice is taken from an approved drinking water source;

(2) establish all necessary criteria for the licensing of packaged ice plants and packaged ice dealers;

(3) issue and renew licenses for packaged ice plants and packaged ice dealers pursuant to the provisions of this act;

(4) refuse to issue, suspend, revoke, or refuse to renew the license of a packaged ice plant or packaged ice dealer for failure to adhere to all standards set forth or promulgated pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(5) prescribe or change the fees for licenses, renewals, and other services it performs pursuant to the provisions of this act;

(6) inspect licensed packaged ice plants and packaged ice dealers to ensure compliance with the provisions or this act;

(7) disseminate informational material to instruct and assist applicants and licensees regarding best practices in the industry, as well as the types of activities that constitute statutory or regulatory violations; and

(8) adopt and promulgate rules and regulations pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.) necessary to effectuate the purpose of this act.

5. (New section) a. The commissioner, upon receipt of information that a contaminant which is present in packaged ice may present an imminent and substantial danger to the public health and safety, may take any action deemed necessary to protect the public health and safety. The actions may include, but need not be limited to, issuing orders as may be necessary to protect consumers of the packaged ice, and commencing a civil action for appropriate relief, including a restraining order or permanent or temporary injunction.

The department may institute a civil action in a court of competent jurisdiction for injunctive or any other appropriate relief to prohibit and prevent a violation of the provisions of this act or any rule or regulation adopted, or order issued, pursuant to this act, and the court may proceed in the action in a summary manner.

b. Any person who sells or manufactures or who has in that person’s possession with intent to sell in this State any packaged ice in violation of this act or any rule, regulation, or order adopted or issued pursuant to this act, shall be liable to a civil administrative penalty of not more than $5,000 for the first offense, or more than $10,000 for the second offense, and up to $25,000 for the third and subsequent offense. A person selling packaged ice at retail shall be liable for these civil administrative penalties only upon a failure to obey an order issued by the department to remove any packaged ice manufactured, sold, or offered for sale in violation of this act. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate, and distinct offense. A civil administrative penalty shall not be levied, except subsequent to the notification of violation by certified mail or personal service. The notice shall include a reference to the section of the law, rule, regulation, order, or licensing condition violated; a concise statement of the facts alleged to constitute the violation; a statement of the amount of the civil penalties to be imposed; and a statement of the person's right to a hearing. The person shall have 20 days from receipt of the notice within which to deliver to the Commissioner of Health a written request for a hearing. Subsequent to the hearing and upon a finding that a violation has occurred, the Commissioner of Health may issue a final order after assessing the amount of the fine specified in the notice. If a hearing is not requested, the notice shall become a final order upon expiration of the 20-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions of this act, and the payment of a civil administrative penalty shall not be deemed to affect the availability of any other enforcement provision in connection with the violations for which the penalty is levied.

c. The department is authorized to compromise and settle any claim for a penalty under this section in an amount that is appropriate and equitable under the circumstances, including the posting of a performance bond by the violator.

d. Any person who violates this act, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection a. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection b. or c. of this section shall be subject, upon order of the court, to a civil penalty not to exceed $10,000 per day of the violation, and each day's continuance of the violation constitutes a separate and distinct violation. A person selling packaged ice at retail shall be subject to a civil penalty only upon a failure to obey an order issued by the department to remove any packaged ice manufactured, sold, or offered for sale in violation of this act. Any penalty imposed under this subsection may be recovered in a summary proceeding under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).. The Superior Court shall have jurisdiction to enforce "the penalty enforcement law."

6. Section 2 of P.L.1964, c.88 (C.24:10-73.2) is amended to read as follows:

2. For the purpose of this act and for any rules, regulations, definitions, standards of identity or labeling requirements, promulgated pursuant thereto, the term "frozen desserts" shall be deemed to include: ice cream, frozen custard, French ice cream, French custard ice cream, sherbet, fruit sherbet, ice milk, [ice,] water ice, quiescently frozen confection, quiescently frozen dairy confection, whipped cream confection, bisque tortoni, artificially sweetened ice cream, or artificially sweetened ice milk, special frozen dietary foods, mellorine frozen desserts as all such products are commonly known together with any such mix used in frozen desserts and any products which are similar in appearance, odor or taste to such products or are prepared or frozen as such products are customarily prepared or frozen whether made with dairy or nondairy products.

(cf: P.L.1969, c.88, s.2)

7. This act shall take effect on the first day of the thirteenth month next following enactment.

STATEMENT

This bill provides for the licensure of packaged ice plants and packaged ice dealers.

Under the bill, the New Jersey Department of Health is required to establish standards governing the manufacturing, storage, and distribution of packaged ice, including standards addressing the processing, packaging, storage, and distribution methods necessary to prevent the contamination of packaged ice or its packaging materials and recall procedures for contaminated packaged ice.

Under the bill, packaged ice plants and packaged ice dealers who are also packaged ice plants are to conduct quarterly testing of packaged ice to determine the presence of certain contaminants. In addition, packaged ice which is manufactured, distributed, or sold within this State is to comply with the regulations concerning drinking water quality standards adopted by the Department of Environmental Protection pursuant to the “Safe Drinking Water Act.”

The bill requires any person owning or operating a packaged ice plant located within, or conducting business within, this State or acting as a packaged ice dealer within this State is to hold a valid license issued by the Department of Health. Under the bill, the Department of Health is to:

· ensure that any applicant or licensee adhere to any standards established by the department pertaining to packaged ice plants or packaged ice distribution;

· inspect licensed packaged ice plants and packaged ice dealers to ensure compliance with standards established by the department; and

· disseminate informational material to instruct and assist applicants and licensees regarding best practices in the industry, as well as the types of activities that constitute a statutory or regulatory violation.

In the event that it is discovered that a contaminant which is present in packaged ice may present an imminent and substantial danger to the public health and safety, the Commissioner of Health may take any action deemed necessary to protect the public health and safety. The actions may include, but need not be limited to, issuing any orders necessary to protect consumers of the packaged ice, and commencing a civil action for appropriate relief, including a restraining order or permanent or temporary injunction.

Any person who sells or manufactures or who has in that person’s possession with intent to sell in this State any packaged ice in violation of this bill shall be liable to a civil administrative penalty of not more than $5,000 for the first offense, or more than $10,000 for the second offense, and up to $25,000 for the third and subsequent offense.

The bill defines “packaged ice plant” to mean any place, premises, or establishment where a person is engaged in the production, processing, or packaging of packaged ice for wholesale distribution or sale directly to the consumer and includes rooms and premises where machines, utensils, and packaging are washed, sanitized, or kept. In addition, the bill defines “packaged ice dealer” to mean a person engaged in the business of distributing packaged ice to retailers for sale to consumers.