In 1996, the Department of Health and Rehabilitative Services (HRS), repealed Chapter 10D-7, of the Florida Administrative Code. In June, 2006, the First District Court of Appeal, affirmed the decision of a lower court, which held that HRS’ repeal ...

DEPARTMENT OF HEALTH
Division of Environmental Health

RULE NO: RULE TITLE
64E-26.001: General
64E-26.002: Definitions
64E-26.003: Water Supply
64E-26.004: Food Service
64E-26.005: Sanitary System, Facilities and Fixtures
64E-26.006: Garbage and Rubbish
64E-26.007: Housing
64E-26.008: Laundry and Dry Cleaning
64E-26.009: Bedding, Clothing and Personal Items
64E-26.010: Housekeeping
64E-26.011: Insect and Rodent Control
64E-26.012: Outdoor Areas
64E-26.013: Industries
PURPOSE AND EFFECT: In 1996, the Department of Health and Rehabilitative Services (HRS), repealed Chapter 10D-7, of the Florida Administrative Code. In June, 2006, the First District Court of Appeal, affirmed the decision of a lower court, which held that HRS’ repeal of the chapter was an invalid exercise of delegated legislative authority. Chapter 10D-7, was thus revived by judicial determination.
Having been repealed before the 1996 and 1999 amendments to the Administrative Procedures Act (APA), this chapter had not previously undergone the review required of state agencies by then subsection (2) of Section 120.536, F.S., (1996-2004), to determine whether there was sufficient legislative authority for existing agency rules. While the specific review requirements of former subsection (2) were repealed during the 2005 legislative session, Section 120.536(1), F.S., continues to mandate that agencies “. . . may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute,” and that: “[N]o agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation.”
Section 381.006(6), F.S., authorizes the Department of Health to maintain as part of its environmental health program: “[A] public facilities function, including sanitary practices relating to . . . all places used for the incarceration of prisoners and inmates of state institutions for the mentally ill.” Since the decision reversing the repeal of Chapter 10D-7, in order to comply with the legislative mandate contained in Section 120.536(1), F.S., the Department of Health as the successor agency to HRS, has been reviewing what is now Chapter 64E-26, F.A.C., to determine if changes to these rules may be necessary due to the limited authority granted the Department in Section 381.006(6), F.S. In the course of its initial review, the department identified and subsequently repealed on May 10, 2007, rules that were clearly without statutory authority to implement. Presently, the department has continued its review of Chapter 64E-26, F.A.C., to see if there are other rules within the chapter that are not supported by statutory authority provided in Section 381.006(6), F.S.
In the course of this review, the department has also found that some health and safety requirements included in Chapter 64E-26, F.A.C., are addressed by other rules administered by the department or other state and local agencies, under more substantive grants of legislative authority. For example, food service requirements are addressed by the department in Chapter 64E-11, F.A.C., based on statutory authority in Section 381.0072, F.S., which specifically includes prisons as a food service establishment under the department’s jurisdiction. Drinking water requirements are addressed by the Department of Environmental Protection (DEP) in Chapters 62-550, 62-555, and 62-560, F.A.C., which implement the provisions of, and DEP’s responsibilities under, Chapter 403, F.S. Fire Safety requirements, including occupant load, are addressed in Chapter 69A-54, F.A.C., which are within the jurisdiction of the State Fire Marshal pursuant to Chapter 633, F.S. Finally, building construction, occupant load, plumbing fixtures and fixture ratios, lighting, ventilation, and equipment requirements are addressed by the Department of Community Affairs and the Florida Building Commission in the Florida Building Code pursuant to authority granted under Chapter 553, F.S.
Thus, the purpose of this proposed rulemaking is to identify and retain requirements from this chapter that are supported by the department’s statutory authority in Section 381.006(6), F.S., and to repeal rules that are not supported by that authority. The effect will be to ensure that the department’s rules comply with the APA’s requirement that each rule of a state agency reflect a specific law the agency is required to implement, interpret, or make specific.
SUMMARY: Rules 64E-26.002, 64E-26.003 and 64E-26.004, F.A.C., are being repealed as there is insufficient authority in Section 381.006(6), F.S., to define terms and adopt requirements related to water supplies and food service, and because the requirements in these sections duplicate rules of the department and other state agencies. Additionally, references to building construction, occupant space, plumbing fixture design and ratios, lighting, equipment, and maintenance requirements found in Rules 64E-26.005 through 64E-26.0013, F.A.C., are also repealed as the department has no authority to adopt rules in these areas for detention facilities. Requirements currently listed in the above referenced rules that are supported by statutory authority, but which are not currently addressed in other agency rules, will be retained and consolidated into one rule section.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 381.006, 381.0011(13) FS.
LAW IMPLEMENTED: 381.006(6), 381.0011(4) FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Leslie Harris, Environmental Administrator, Bureau of Community Environmental Health, Bin #A08, 4052 Bald Cypress Way, Tallahassee, Florida 32399-1710. Email address is [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

64E-26.001 General.

This Rule Chapter 64E-26, F.A.C., addresses sSanitary practices relating to the construction, operation and maintenance of sState and lLocal dDetention fFacilities. Upon receipt of a complaint of violation of this chapter, the Department of Health shall refer the complaint to the appropriate agency having inspection authority over the particular facility referenced in the complaint. The department shall work with agencies having inspection authority over detention facilities to ensure that such complaints are referred and processed, and that the department's rules and sanitary standards are met.

Rulemaking Specific Authority 381.006, 381.0011(13) FS. Law Implemented 381.006(6), 381.0011(4) FS. History–New 11‑18‑76, Formerly 10D‑7.01, Amended________.

 

64E-26.002 Definitions.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.02, Repealed________.

 

64E-26.003 Water Supply.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.03, Repealed________.

 

64E-26.004 Food Service.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.04, Repealed ________.

 

(Substantial rewording of Rule 64E-26.005 follows. See Florida Administrative Code for present text.)

64E-26.005 Sanitary Standards.

(1) Drinking utensils and showers.

(a) Inmates in areas where no approved drinking fountains are available shall be provided with single service cups which shall be stored and dispensed in a manner to prevent contamination, or reusable cups that can be and are cleaned and sanitized in accordance with Rule 64E-11.006, F.A.C. Common drinking cups are prohibited.

(b) Showers. Inmates shall be allowed to take showers at least twice weekly.

(2) Housekeeping.

(a) Inmate residential areas shall be kept clean and sanitary at all times. Floors, walls, ceilings, doors, windows, bars, and all appurtenances of the structures shall be kept clean. Plumbing fixtures, such as urinals, showers, toilets and lavatories shall be cleaned daily, and sanitized on a schedule established by the detention facility that is consistent with this rule. Such fixtures and areas shall be sanitized at least daily if used daily. Sanitizers shall be used in accordance with the label directions to achieve the intended effect. EPA registered disenfectants can be used instead of sanitizers as long as they are used in accordance with the directions on the product label.

(b) Mops, brooms and other cleaning equipment shall be stored in ventilated areas. Mop sinks and other janitorial facilities shall be kept clean.

(c) Inmates shall not store perishable foods in their lockers or living areas. Perishable foods are foods that are defined in subsection 64E-11.002(31), F.A.C.

(d) All floor drains shall be kept clean. All floor drain traps shall be kept wet to prevent sewer gas from entering the building.

(e) All housing facilities shall be kept free of offensive odors.

(3) Laundry and Dry Cleaning. Where laundry facilities are provided, they shall be kept clean. If laundry facilities are not available, sheets and blankets shall be sent to commercial laundries.

(4) Garbage and Rubbish.

(a) All garbage, trash and rubbish from inmate residential areas shall be collected daily and taken to storage facilities. Garbage shall be removed from storage facilities at least twice per week. Pending disposal, wet garbage shall be collected and stored in a manner that does not create a sanitary nuisance, such as in impervious, leak proof, fly tight containers. All containers, storage areas and surrounding premises shall be kept clean and free of vermin.

(b) If public or contract garbage collection service is available, the detention facility shall subscribe to these services unless the volume makes on‑site disposal feasible. If garbage and trash are disposed of on premises, the method of disposal shall not create sanitary nuisance conditions and shall comply with Chapter 62-701, F.A.C.

(5) Bedding, Clothing and Personal Items.

Beds and bedding shall be cleaned and sanitized on a schedule established by the correctional facility that is consistent with this rule. Used mattress and pillow covers shall be laundered or washed and sanitized before issued. Sanitization procedures shall follow current industry practices, such as by the use of commercial laundry laundering procedures or chemical sanitizers registered with the United States Environmental Protection Agency. Sanitizers shall be used in accordance with the label directions to achieve the intended effect. EPA registered disinfectants can be used instead of sanitizers as long as they are used in accordance with the directions on the product label. Sheets and personal clothing shall be washed at least weekly and blankets washed or dry cleaned at least quarterly. Sheets and blankets shall be stored in a clean, dry place between laundering and issue.

(6) Insect and Rodent Control. Detention facilities shall be kept free of insects and rodents. All pesticides used to control insects or rodents shall be applied in accordance with instructions and cautions on the registered product label.

(7) Outdoor Areas. If a facility has an outdoor exercise area, it shall be kept free of litter and trash and be well drained. If toilet and lavatory facilities are provided, they shall be kept clean.

Rulemaking Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.05, Amended________.

 

64E-26.006 Garbage and Rubbish.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.06, Repealed________.

 

64E-26.007 Housing.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.07, Repealed_______.

 

64E-26.008 Laundry and Dry Cleaning.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.08, Amended 5-10-07, Repealed________.

 

64E-26.009 Bedding, Clothing and Personal Items.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.09, Repealed________.

 

64E-26.010 Housekeeping.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.10, Repealed ________.

 

64E-26.011 Insect and Rodent Control.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.012, Repealed________.

 

64E-26.012 Outdoor Areas.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.012, Repealed________.

 

64E-26.013 Industries.

Specific Authority 381.006 FS. Law Implemented 381.006(6) FS. History–New 11‑18‑76, Formerly 10D‑7.013, Amended 5-10-07, Repealed________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Leslie L. Harris
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Ana M. Viamonte Ros, M.D, M.P.H.
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 6, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: July 2, 2009