The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.

1. (1) Bed and breakfast--A private residence where temporary lodging is provided and potentially hazardous food is prepared for overnight customers only. A bed and breakfast is classified as a food service establishment.
2. (2) Day care center--Any facility licensed to receive 13 or more children for day care. A day care center is classified as a food service establishment.
3. (3) Food--Any raw, cooked, or processed edible substance, ice, beverage, or ingredient used or intended for use or for sale in whole or in part for human consumption.

4. (4) Food service establishment--Any place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether the consumption is on or off the premises and regardless of whether there is a charge for the food. The term also includes delicatessen-type operations that prepare sandwiches intended for individual portion service. The term does not include private homes where food is prepared or served for individual family consumption, retail food stores, the location of food vending machines, and supply vehicles. All definitions found in §229.162 of this title (relating to Definitions) under the rules on food service sanitation; and all definitions found in §229.231 of this title (relating to General Provisions) under the rules on retail food store sanitation are applicable to these sections except that, for purposes of obtaining a permit and payment of fees only, the term "food service establishment" does not include:

   1. (A) establishments permitted and inspected under authority granted to home-rule or Type A general-law municipalities;
   2. (B) federally inspected establishments on federal property;
   3. (C) correction facilities under the inspection of the Texas Department of Criminal Justice;
   4. (D) nursing homes under the inspection of Long-Term Care Regulatory in the Texas Department of Human Services;
   5. (E) hospitals under the inspection of the Division of Health Facility Licensure and Certification in the department and which do not serve food to the general public;
   6. (F) food service facilities on state campuses inspected by state college or university personnel in accordance with the requirements of §229.373 of this title (relating to Minimum Standards for Permitting and Operation);
   7. (G) establishments licensed under the Health and Safety Code, Chapter 431, as manufacturers of food, provided the fee for licensure exceeds the permit fee required under §229.372 of this title (relating to Permitting Fees and Procedures);
   8. (H) food service facilities under inspection by personnel employed by the Department of Mental Health and Mental Retardation; and
   9. (I) food service facilities, operated on a part-time basis by nonprofit organizations, which do not directly compete on a continuous basis with the food service industry. Nonprofit organizations which meet the definition of "manufacturers of food" under Health and Safety Code, Chapter 431, or the definition of "food salvage establishments" under Health and Safety Code, Chapter 432, are not exempt from licensure in these categories. This exemption includes "bake sales" and donation of wholesome food to the needy, if the donating facilities are in substantial compliance with applicable state and federal laws.
5. (5) Mobile food unit--A vehicle-mounted food service establishment designed to be readily moveable. For the purpose of obtaining a permit and payment of fees only, the term "mobile food unit" does not include establishments permitted and inspected under the authority granted to home-rule or Type A general-law municipalities and which operate only within their respective boundaries.
6. (6) Nonprofit organization--A civic or fraternal organization, charity, lodge, association, proprietorship, or corporation possessing an Internal Revenue Code, §501(C)(3), exemption; or religious organizations meeting the definition of "church" under the Internal Revenue Code, §170(b)(1)(A)(I).
7. (7) Potentially hazardous food--Any food that consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish, edible crustacea, or other ingredients including synthetic ingredients, in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms. The term does not include clean, whole, uncracked, odor-free shell eggs or foods which have a pH level of 4.5 or below or a water activity (Aw) value of 0.85 or less.
8. (8) Pushcart--A non-self-propelled mobile food unit limited to serving nonpotentially hazardous foods or prepackaged foods maintained at proper temperatures, or limited to the preparation and serving of frankfurters. A pushcart is classified as a mobile food unit.
9. (9) Retail food store--Any establishment or section of an establishment where food and food products are offered to the consumer and intended for off-premise consumption. The term includes delicatessens that offer prepared food in bulk quantities only. The term does not include establishments which handle only prepackaged, nonpotentially hazardous foods; roadside markets that offer only fresh fruits and fresh vegetables for sale; food service establishments; farmers markets; or food and beverage vending machines as defined in the Vending of Food and Beverages, 1978, Department of Health, Education and Welfare Publication Number (FDA) 78-2091; except that, for the purposes of obtaining a permit and payment of fees only, the term "retail food store" does not include establishments permitted and inspected under authority granted to home-rule and Type A general-law municipalities.
10. (10) Roadside food vendor--A person who operates a mobile retail food store from a temporary location adjacent to a public roadway or highway. Potentially hazardous foods shall not be prepared or processed by roadside food vendors. A roadside food vendor is classified as a retail food store.
11. (11) School food service facility--A food service establishment where food is prepared and intended for service primarily to students in institutions of learning including, but not limited to, public and private kindergarten, preschool and elementary schools, junior high schools, high schools, colleges, and universities. A school food service facility is classified as a food service establishment.

Source Note:The provisions of this §229.371 adopted to be effective May 20, 1994, 19 TexReg 3488.