Illinois General Assembly - Full Text of SB3380
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Full Text of SB3380  98th General Assembly




State of Illinois
2013 and 2014


Introduced 2/14/2014, by Sen. David Koehler


410 ILCS 625/3.3
410 ILCS 625/3.4 new
410 ILCS 625/3.5 new
410 ILCS 625/4
410 ILCS 650/11  from Ch. 56 1/2, par. 77

    Amends the Food Handling Regulation Enforcement Act. Provides that regulation of farmers' markets by local authorities may be no more stringent than the regulation established by the Department of Public Health. Establishes a framework for the regulation of food samples. Imposes requirements for disclosure of product origin with respect to specialty crops and raw agricultural commodities. Authorizes a State-certified local public health department to impose a fee in connection with the registration of a cottage food operation. Effective immediately.

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SB3380LRB098 19070 RPM 54220 b

1    AN ACT concerning public health.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Food Handling Regulation Enforcement Act is
5amended by changing Sections 3.3 and 4 and by adding Sections
63.4 and 3.5 as follows:
7    (410 ILCS 625/3.3)
8    Sec. 3.3. Farmers' markets.
9    (a) The General Assembly finds as follows:
10        (1) Farmers' markets, as defined in subsection (b) of
11    this Section, provide not only a valuable marketplace for
12    farmers and food artisans to sell their products directly
13    to consumers, but also a place for consumers to access
14    fresh fruits, vegetables, and other agricultural products.
15        (2) Farmers' markets serve as a stimulator for local
16    economies and for thousands of new businesses every year,
17    allowing farmers to sell directly to consumers and capture
18    the full retail value of their products. They have become
19    important community institutions and have figured in the
20    revitalization of downtown districts and rural
21    communities.
22        (3) Since 1999, the number of farmers' markets has
23    tripled and new ones are being established every year.



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1    There is a lack of consistent regulation from one county to
2    the next, resulting in confusion and discrepancies between
3    counties regarding how products may be sold.
4        (4) In 1999, the Department of Public Health published
5    Technical Information Bulletin/Food #30 in order to
6    outline the food handling and sanitation guidelines
7    required for farmers' markets, producer markets, and other
8    outdoor food sales events.
9        (5) While this bulletin was revised in 2010, there
10    continues to be inconsistencies, confusion, and lack of
11    awareness by consumers, farmers, markets, and local health
12    authorities of required guidelines affecting farmers'
13    markets from county to county.
14    (b) For the purposes of this Section:
15    "Department" means the Department of Public Health.
16    "Director" means the Director of Public Health.
17    "Farmers' market" means a common facility or area where
18farmers gather to sell a variety of fresh fruits and vegetables
19and other locally produced farm and food products directly to
20consumers. Local food artisans may participate at farmers'
22    (c) In order to facilitate the orderly and uniform
23statewide interpretation of the Department of Public Health's
24Technical Information Bulletin/Food #30, the Farmers' Market
25Task Force shall be formed by the Director to assist the
26Department in implementing statewide administrative



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1regulations for farmers' markets.
2    (d) This Act does not intend and shall not be construed to
3limit the power of counties, municipalities, and other local
4government units to regulate farmers' markets for the
5protection of the public health, safety, morals, and welfare,
6including, but not limited to, licensing requirements and time,
7place, and manner restrictions. This Act provides for a
8statewide scheme for the orderly and consistent interpretation
9of the Department of Public Health administrative rules
10pertaining to the safety of food and food products sold at
11farmers' markets.
12    (e) The Farmers' Market Task Force shall consist of at
13least 24 members appointed within 60 days after the effective
14date of this Section. Task Force members shall consist of:
15        (1) one person appointed by the President of the
16    Senate;
17        (2) one person appointed by the Minority Leader of the
18    Senate;
19        (3) one person appointed by the Speaker of the House of
20    Representatives;
21        (4) one person appointed by the Minority Leader of the
22    House of Representatives;
23        (5) the Director of Public Health or his or her
24    designee;
25        (6) the Director of Agriculture or his or her designee;
26        (7) a representative of a general agricultural



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1    production association appointed by the Department of
2    Agriculture;
3        (8) three representatives of local county public
4    health departments appointed by the Director and selected
5    from 3 different counties representing each of the
6    northern, central, and southern portions of this State;
7        (9) four members of the general public who are engaged
8    in local farmers' markets appointed by the Director of
9    Agriculture;
10        (10) a representative of an association representing
11    public health administrators appointed by the Director;
12        (11) a representative of an organization of public
13    health departments that serve the City of Chicago and the
14    counties of Cook, DuPage, Kane, Kendall, Lake, McHenry,
15    Will, and Winnebago appointed by the Director;
16        (12) a representative of a general public health
17    association appointed by the Director;
18        (13) the Director of Commerce and Economic Opportunity
19    or his or her designee;
20        (14) the Lieutenant Governor or his or her designee;
21    and
22        (15) five farmers who sell their farm products at
23    farmers' markets appointed by the Lieutenant Governor or
24    his or her designee.
25    Task Force members' terms shall be for a period of 2 years,
26with ongoing appointments made according to the provisions of



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1this Section.
2    (f) The Task Force shall be convened by the Director or his
3or her designee. Members shall elect a Task Force Chair and
5    (g) Meetings may be held via conference call, in person, or
6both. Three members of the Task Force may call a meeting as
7long as a 5-working-day notification is sent via mail, e-mail,
8or telephone call to each member of the Task Force.
9    (h) Members of the Task Force shall serve without
11    (i) The Task Force shall undertake a comprehensive and
12thorough review of the current Statutes and administrative
13rules that define which products and practices are permitted
14and which products and practices are not permitted at farmers'
15markets and to assist the Department in developing statewide
16administrative regulations for farmers' markets.
17    (j) The Task Force shall assist the Department of Public
18Health and the Department of Agriculture in developing
19administrative regulations and procedures regarding the
20implementation of the various Acts that define which products
21and practices are permitted and which products and practices
22are not permitted at farmers' markets.
23    (k) The Department of Public Health shall provide staffing
24support to the Task Force and shall help to prepare, print, and
25distribute all reports deemed necessary by the Task Force.
26    (l) The Task Force may request assistance from any entity



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1necessary or useful for the performance of its duties. The Task
2Force shall issue a report annually to the Secretary of the
3Senate and the Clerk of the House.
4    (m) The following provisions shall apply concerning
5statewide farmers' market food safety guidelines:
6        (1) The Director, in accordance with this Section,
7    shall adopt administrative rules (as provided by the
8    Illinois Administrative Procedure Act) for foods found at
9    farmers' markets.
10        (2) The rules and regulations described in this Act
11    shall be consistently enforced by local health authorities
12    throughout the State.
13        (2.5) Notwithstanding any other provision of law
14    except as provided in this Act, local public health
15    departments and all other units of local government are
16    prohibited from creating sanitation guidelines, rules, or
17    regulations for farmers' markets that are more stringent
18    than those farmers' market sanitation guidelines contained
19    in the Department of Public Health's Technical Information
20    Bulletin #30 Sanitation Guidelines for Farmers Markets
21    (TIB #30), any subsequent revisions to TIB #30, or any
22    subsequent administrative rules adopted by the Department
23    for the purposes of implementing this Act. Except as
24    provided for in Section 3.4 of this Act, this Act does not
25    intend and shall not be construed to limit the power of
26    local health departments and other government units from



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1    requiring licensing and permits for the sale of commercial
2    food products, processed food products, prepared foods,
3    and potentially hazardous foods at farmers' markets or
4    conducting related inspections and enforcement activities,
5    so long as those permits and licenses do not include
6    onerous and unreasonable fees or sanitation provisions and
7    rules that are more stringent than those laid out in the
8    Department's TIB#30, subsequent revisions to TIB #30, or
9    any subsequent administrative rules adopted by the
10    Department for the purposes of implementing this Act.
11        (3) In the case of alleged non-compliance with the
12    provisions described in this Act, local health departments
13    shall issue written notices to vendors and market managers
14    of any noncompliance issues.
15        (4) Produce and food products coming within the scope
16    of the provisions of this Act shall include, but not be
17    limited to, raw agricultural products, including fresh
18    fruits and vegetables; popcorn, grains, seeds, beans, and
19    nuts that are whole, unprocessed, unpackaged, and
20    unsprouted; fresh herb springs and dried herbs in bunches;
21    baked goods sold at farmers' markets; cut fruits and
22    vegetables; milk and cheese products; ice cream; syrups;
23    wild and cultivated mushrooms; apple cider and other fruit
24    and vegetable juices; herb vinegar; garlic-in-oil;
25    flavored oils; pickles, relishes, salsas, and other canned
26    or jarred items; shell eggs; meat and poultry; fish; and



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1    commercially produced prepackaged food products.
2    (n) Local health department regulatory guidelines may be
3applied to foods not often found at farmers' markets, all other
4food products not regulated by the Department of Agriculture
5and the Department of Public Health, as well as live animals to
6be sold at farmers' markets.
7    (o) The Task Force shall issue annual reports to the
8Secretary of the Senate and the Clerk of the House with
9recommendations for the development of administrative rules as
10specified. The first report shall be issued no later than
11December 31, 2012.
12    (p) The Department of Public Health and the Department of
13Agriculture, in conjunction with the Task Force, shall adopt
14administrative rules necessary to implement, interpret, and
15make specific the provisions of this Act, including, but not
16limited to, rules concerning labels, sanitation, and food
17product safety according to the realms of their jurisdiction.
18Proposed administrative rules shall be drafted and published
19for initial public comment no later than October 1, 2014.
20    (q) The Department and the Task Force shall work together
21to create a food sampling training and license program as
22specified in Section 3.4 of this Act.
23(Source: P.A. 97-394, eff. 8-16-11.)
24    (410 ILCS 625/3.4 new)
25    Sec. 3.4. Product samples.



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1    (a) For the purpose of this Section, "food product
2sampling" means food product samples distributed free of charge
3for promotional or educational purposes only.
4    (b) Notwithstanding any other provision of law, except as
5provided in subsection (c) of this Section, a vendor who
6engages in food product sampling at a farmers' market or farm
7stand registered with the Department of Agriculture Bureau of
8Marketing may do so without obtaining a permit to provide those
9samples or any other applicable State or local permit or
10license to do so, provided all of the following conditions are
12        (1) Except when samples are entirely prepared and
13    packaged individually in single-use serving sampling
14    containers at a commercially certified and inspected
15    kitchen or cottage food operation prior to arriving at the
16    farmers' market, a vendor engaged in food product sampling
17    must at a minimum:
18            (A) provide or have reasonable access to a hand
19        washing station that consists of a container with a
20        spigot that provides hands-free flowing potable water,
21        a waste bucket or catch basin under the spigot, a
22        pump-type soap dispenser, and single use disposable
23        towels;
24            (B) operate in accordance with 77 Ill. Adm. Code
25        750.512 and 750.514 (When to Wash Hands and Where to
26        Wash Hands); and



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1            (C) wash, rinse, and sanitize all equipment,
2        utensils, and cutting boards used to slice or prepare
3        samples prior to use in sampling utilizing a 3-sink
4        system or, at minimum, a basic 3-bucket washing station
5        setup.
6        (2) Product samples shall be stored and held under
7    sanitary conditions in accordance with the following
8    provisions:
9            (A) Product samples must at all times be protected
10        from insects, flies, dirt, unnecessary handling,
11        chemicals, adulterants, and any other contamination.
12            (B) Samples at a farmers' market vendor stand or
13        booth shall be displayed in a manner that protects them
14        from insects, flies, dirt, unnecessary handling,
15        chemicals, adulterants, and any other contamination.
16            (C) The premises where samples are distributed
17        shall be maintained in a neat and clean sanitary
18        condition.
19            (D) If ice or dry ice is necessary or used to cool
20        samples or keep samples at the appropriate temperature
21        as required under the Illinois Food Service Sanitation
22        Code, it shall be done in accordance with 77 Ill. Adm.
23        Code 750.1620 and Section 750.1650 (Ice and Wet
24        Storage). All potentially hazardous food must be held
25        at the appropriate temperature; any form is
26        acceptable, so long as the temperature requirement is



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1        met.
2        (3) Product samples of food may only be distributed
3    using single-use sampling equipment, including, but not
4    limited to, tooth-picks, cups, and containers.
5        (4) Potentially hazardous samples of foods that
6    require temperature control for safety that have not been
7    served to consumers within 2 hours after preparation must
8    be discarded.
9        (5) All raw agricultural foods, such as fruits and
10    vegetables, must be thoroughly washed in potable water
11    prior to cutting. All washed food products for sampling
12    must be stored separately and apart from other unwashed
13    food items and shall be protected from recontamination
14    after washing.
15        (6) Animals are not allowed in any food product
16    sampling or handling areas.
17        (7) The vendor offering samples has a
18    Department-approved food handling license.
19        The Department of Public Health is instructed to work
20    with the Farmers' Market Task Force as created in Section
21    3.3 of this Act to create a specific food sampling at
22    farmers' market training course and license to fulfill this
23    requirement. The Department may charge a reasonable fee for
24    the license and training course. The Department may
25    delegate or contract authority to administer the food
26    sampling training course to other public and private



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1    entities. Upon completion of the food sampling at farmers'
2    market training course, a trainee shall submit proof to the
3    Department and the Department shall issue a food sampling
4    training license that is valid for 2 years.
5    (c) Notwithstanding the provisions of subsection (b) of
6this Section, the Department of Public Health, the Department
7of Agriculture, a certified local health department, or any
8unit of local government may inspect a vendor at a farmers'
9market to ensure compliance with the provisions in this
10Section. If an imminent health hazard exists or a vendor's
11product has been found to be misbranded, adulterated, or not in
12compliance with the permit exemption for vendors pursuant to
13this Section, then the regulatory authority may invoke
14cessation of sales until it deems that the situation has been
16    (410 ILCS 625/3.5 new)
17    Sec. 3.5. Product origin.
18    (a) All vendors or booths selling specialty crops and raw
19agricultural commodities at a farmers' market in Illinois must
20post at the point of sale a placard or include on a label or
21packing slip the physical location of the farm on which those
22products were grown or produced.
23    (b) Specialty crops and raw agricultural commodities
24direct marketed at farmers' markets that do not include a
25placard at the point of sale or on a label or packing slip



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1stating the physical location of the farm on which those
2products were grown or produced shall be considered misbranded
3and adulterated.
4    (410 ILCS 625/4)
5    Sec. 4. Cottage food operation.
6    (a) For the purpose of this Section:
7    "Cottage food operation" means an operation conducted by a
8person who produces or packages non-potentially hazardous food
9in a kitchen located in of that person's primary domestic
10residence or another kitchen on that property for direct sale
11by the owner or a family member, stored in the residence where
12the food is made.
13    "Farmers' market" means a common facility or area where
14farmers gather to sell a variety of fresh fruits and vegetables
15and other locally produced farm and food products directly to
17    "Potentially hazardous food" means a food that is
18potentially hazardous according to the Federal Food and Drug
19Administration 2009 Food Code (FDA 2009 Food Code) or any
20subsequent amendments to the FDA 2009 Food Code. Potentially
21hazardous food (PHF) in general means a food that requires time
22and temperature control for safety (TCS) to limit pathogenic
23microorganism growth or toxin formation. In accordance with the
24FDA 2009 Food Code, potentially hazardous food does not include
25a food item that because of its pH or Aw value, or interaction



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1of Aw and pH values, is designated as a non-PHF/non-TCS food in
2Table A or B of the FDA 2009 Food Code's potentially hazardous
3food definition.
4    (b) Notwithstanding any other provision of law and except
5as provided in subsections (c) and (d) of this Section, neither
6the Department of Public Health nor the Department of
7Agriculture nor the health department of a unit of local
8government may regulate the service of food by a cottage food
9operation providing that all of the following conditions are
11        (1) The food is not a potentially hazardous baked good,
12    jam, jelly, preserve, fruit butter, dry herb, dry herb
13    blend, or dry tea blend and is intended for end-use only.
14    The following provisions shall apply:
15            (A) The following jams, jellies and preserves are
16        allowed: apple, apricot, grape, peach, plum, quince,
17        orange, nectarine, tangerine, blackberry, raspberry,
18        blueberry, boysenberry, cherry, cranberry, strawberry,
19        red currants, or a combination of these fruits.
20        Rhubarb, tomato, and pepper jellies or jams are not
21        allowed. Any other jams, jellies, or preserves not
22        listed may be produced by a cottage food operation
23        provided their recipe has been tested and documented by
24        a commercial laboratory, at the expense of the cottage
25        food operation, as being not potentially hazardous,
26        containing a pH equilibrium of less than 4.6.



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1            (B) The following fruit butters are allowed:
2        apple, apricot, grape, peach, plum, quince, and prune.
3        Pumpkin butter, banana butter, and pear butter are not
4        allowed. Fruit butters not listed may be produced by a
5        cottage food operation provided their recipe has been
6        tested and documented by a commercial laboratory, at
7        the expense of the cottage food operation, as being not
8        potentially hazardous, containing a pH equilibrium of
9        less than 4.6.
10            (C) Baked goods, such as, but not limited to,
11        breads, cookies, cakes, pies, and pastries are
12        allowed. Only high-acid fruit pies that use the
13        following fruits are allowed: apple, apricot, grape,
14        peach, plum, quince, orange, nectarine, tangerine,
15        blackberry, raspberry, blueberry, boysenberry, cherry,
16        cranberry, strawberry, red currants or a combination
17        of these fruits. Fruit pies not listed may be produced
18        by a cottage food operation provided their recipe has
19        been tested and documented by a commercial laboratory,
20        at the expense of the cottage food operation, as being
21        not potentially hazardous, containing a pH equilibrium
22        of less than 4.6. The following are potentially
23        hazardous and prohibited from production and sale by a
24        cottage food operation: pumpkin pie, sweet potato pie,
25        cheesecake, custard pies, creme pies, and pastries
26        with potentially hazardous fillings or toppings.



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1        (2) The food is to be sold at a farmers' market.
2        (3) Gross receipts from the sale of food exempted under
3    this Section do not exceed $25,000 in a calendar year.
4        (4) The food packaging conforms to the labeling
5    requirements of the Illinois Food, Drug and Cosmetic Act
6    and includes the following information on the label of each
7    of its products:
8            (A) the name and address of the cottage food
9        operation;
10            (B) the common or usual name of the food product;
11            (C) all ingredients of the food product, including
12        any colors, artificial flavors, and preservatives,
13        listed in descending order by predominance of weight
14        shown with common or usual names;
15            (D) the following phrase: "This product was
16        produced in a home kitchen not subject to public health
17        inspection that may also process common food
18        allergens.";
19            (E) the date the product was processed; and
20            (F) allergen labeling as specified in federal
21        labeling requirements.
22        (5) The name and residence of the person preparing and
23    selling products as a cottage food operation is registered
24    with the health department of a unit of local government
25    where the cottage food operation resides. No fees shall be
26    charged for registration. Registration shall be for a



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1    minimum period of one year.
2        (6) The person preparing and selling products as a
3    cottage food operation has a Department of Public Health
4    approved Food Service Sanitation Management Certificate.
5        (7) At the point of sale a placard is displayed in a
6    prominent location that states the following: "This
7    product was produced in a home kitchen not subject to
8    public health inspection that may also process common food
9    allergens.".
10    (c) Notwithstanding the provisions of subsection (b) of
11this Section, if the Department of Public Health or the health
12department of a unit of local government has received a
13consumer complaint or has reason to believe that an imminent
14health hazard exists or that a cottage food operation's product
15has been found to be misbranded, adulterated, or not in
16compliance with the exception for cottage food operations
17pursuant to this Section, then it may invoke cessation of sales
18until it deems that the situation has been addressed to the
19satisfaction of the Department.
20    (d) Notwithstanding the provisions of subsection (b) of
21this Section, a State-certified local public health department
22may, upon providing a written statement to the Department of
23Public Health, regulate the service of food by a cottage food
24operation. The regulation by a State-certified local public
25health department may include all of the following



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1        (1) That the cottage food operation (A) register with
2    the State-certified local public health department, which
3    shall be for a minimum of one year and may include a
4    reasonable fee set by the State-certified local public
5    health department that is no greater than $25
6    notwithstanding paragraph (5) of subsection (b) of this
7    Section and (B) agree in writing at the time of
8    registration to grant access to the State-certified local
9    public health department to conduct an inspection of the
10    cottage food operation's primary domestic residence in the
11    event of a consumer complaint or foodborne illness
12    outbreak.
13        (2) That in the event of a consumer complaint or
14    foodborne illness outbreak the State-certified local
15    public health department is allowed to (A) inspect the
16    premises of the cottage food operation in question and (B)
17    set a reasonable fee for that inspection.
18(Source: P.A. 97-393, eff. 1-1-12.)
19    Section 10. The Sanitary Food Preparation Act is amended by
20changing Section 11 as follows:
21    (410 ILCS 650/11)  (from Ch. 56 1/2, par. 77)
22    Sec. 11. Except as hereinafter provided and as provided in
23Sections 3.3, 3.4, and 4 of the Food Handling Regulation
24Enforcement Act, the Department of Public Health shall enforce



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1this Act, and for that purpose it may at all times enter every
2such building, room, basement, inclosure or premises occupied
3or used or suspected of being occupied or used for the
4production, preparation or manufacture for sale, or the
5storage, sale, distribution or transportation of such food, to
6inspect the premises and all utensils, fixtures, furniture and
7machinery used as aforesaid; and if upon inspection any such
8food producing or distribution establishment, conveyance, or
9employer, employee, clerk, driver or other person is found to
10be violating any of the provisions of this Act, or if the
11production, preparation, manufacture, packing, storage, sale,
12distribution or transportation of such food is being conducted
13in a manner detrimental to the health of the employees and
14operatives, or to the character or quality of the food therein
15being produced, manufactured, packed, stored, sold,
16distributed or conveyed, the officer or inspector making the
17inspection or examination shall report such conditions and
18violations to the Department. The Department of Agriculture
19shall have exclusive jurisdiction for the enforcement of this
20Act insofar as it relates to establishments defined by Section
212.5 of "The Meat and Poultry Inspection Act", approved July 22,
221959, as heretofore or hereafter amended. The Department of
23Agriculture or Department of Public Health, as the case may be,
24shall thereupon issue a written order to the person, firm or
25corporation responsible for the violation or condition
26aforesaid to abate such condition or violation or to make such



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1changes or improvements as may be necessary to abate them,
2within such reasonable time as may be required. Notice of the
3order may be served by delivering a copy thereof to the person,
4firm or corporation, or by sending a copy thereof by registered
5mail, and the receipt thereof through the post office shall be
6prima facie evidence that notice of the order has been
7received. Such person, firm or corporation may appear in person
8or by attorney before the Department of Agriculture or the
9Department of Public Health, as the case may be, within the
10time limited in the order, and shall be given an opportunity to
11be heard and to show why such order or instructions should not
12be obeyed. The hearing shall be under such rules and
13regulations as may be prescribed by the Department of
14Agriculture or the Department of Public Health, as the case may
15be. If after such hearing it appears that this Act has not been
16violated, the order shall be rescinded. If it appears that this
17Act is being violated, and that the person, firm or corporation
18notified is responsible therefor, the previous order shall be
19confirmed or amended, as the facts shall warrant, and shall
20thereupon be final, but such additional time as is necessary
21may be granted within which to comply with the final order. If
22such person, firm or corporation is not present or represented
23when such final order is made, notice thereof shall be given as
24above provided. On failure of the party or parties to comply
25with the first order of the Department of Agriculture or the
26Department of Public Health, as the case may be, within the



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1time prescribed, when no hearing is demanded, or upon failure
2to comply with the final order within the time specified, the
3Department shall certify the facts to the State's Attorney of
4the county in which such violation occurred, and such State's
5Attorney shall proceed against the party or parties for the
6fines and penalties provided by this Act, and also for the
7abatement of the nuisance: Provided, that the proceedings
8herein prescribed for the abatement of nuisances as defined in
9this Act shall not in any manner relieve the violator from
10prosecution in the first instance for every such violation, nor
11from the penalties for such violation prescribed by Section 13.
12(Source: P.A. 97-393, eff. 1-1-12; 97-394, eff. 8-16-11;
1397-813, eff. 7-13-12.)
14    Section 99. Effective date. This Act takes effect upon
15becoming law.