LCQ3: Operation of unlicensed food business at outdoor barbecue sites
*********************************************************************
Question:
Some members of the public have relayed to me that there is an outdoor barbecue site operating illegally on a private farmland at Tin Ping Road, Sheung Shui, which has an area of 20 000 square feet. It is learnt that there are two other illegally operated outdoor barbecue sites in Kau Wa Keng Old Village area near Mei Foo. Such barbecue sites have caused odour, noise and light pollution nuisances to residents in the vicinity, and also brought about environmental hygiene and illegal parking problems, etc. As such barbecue sites sell liquor without a licence, law and order problems have also arisen from the troubles caused by their drunken customers. Moreover, the lack of fire service facilities in such barbecue sites jeopardises customers' safety. Even though the authorities have instituted prosecutions against those persons operating outdoor barbecue sites illegally, the operators concerned just regard the fines as part of their operating costs. This shows that the fines are unable to achieve any deterrent effect and that there are loopholes in the relevant laws, rendering the problems unresolved over the years. In this connection, will the Government inform this Council:
(1) of the ordinances that currently regulate outdoor barbecue sites, including the licences that the operators are required to obtain; the current number of lawfully operated outdoor barbecue sites, and whether it has compiled statistics on the current number of outdoor barbecue sites operating illegally; the number of complaints received against outdoor barbecue sites by various government departments in each of the past three years, together with a breakdown by the content of such complaints;
(2) whether the relevant government departments regularly conducts inspections on lawfully operated outdoor barbecue sites, so as to ensure that the barbecue sites are operated in accordance with the licensing conditions and the relevant legislation; of the follow-up actions taken by various government departments in the past three years in respect of those barbecue sites which violated the licensing conditions or involved illegal structures, and whether they instituted prosecutions against the operators concerned; if so, of the punishments imposed on the convicted persons; of the current progress of such follow-up actions; given that outdoor barbecue sites have brought about long-standing problems in respect of environmental hygiene, noise, traffic, law and order, etc., whether the Government has plans to amend the legislation to step up the regulation and raise the penalties, and step up its law enforcement efforts, in order to improve the current situation; if so, of the details; if not, the reasons for that; and
(3) whether it will put in place for outdoor barbecue sites a demerit point system under which barbecue sites under complaint will be given demerit points if the complaints have been found substantiated, and those barbecue sites which have incurred maximum demerit points will have to cease operation, so as to achieve deterrent effect; if so, of the details; if not, the reasons for that; whether the authorities have other measures put in place to resolve the aforesaid problems?
Reply:
President,
The Food and Environmental Hygiene Department (FEHD) has all along been concerned about the environmental hygiene nuisances caused by the operation of unlicensed food business at outdoor barbecue sites. Apart from carrying out routine inspections and enforcement actions, FEHD also takes blitz prosecution actions from time to time against these unlicensed food premises. Where necessary, FEHD will increase the frequency of prosecutions, arrest and prosecute offenders and seize the articles involved to enhance the deterrent effect.
My reply to the various parts of the question is as follows:
(1) Depending on the mode of operation, generally there are three types of food business licence that the operator of an outdoor barbecue site may apply for under the Food Business Regulation (the Regulation):
(a) if food is sold to customers for consumption on the premises, a restaurant licence should be obtained;
(b) if food is only prepared for sale for consumption off the premises, a food factory licence should be obtained; and
(c) if fresh, chilled or frozen meat is sold, a fresh provision shop licence should be obtained.
According to its records, in the past year, FEHD took enforcement actions against the operation of unlicensed food business at nine outdoor barbecue sites (including the barbecue sites mentioned in Hon Steven Ho's question). Such actions included instituting 72 prosecutions against the operators of the barbecue sites for conducting food business at the sites without obtaining a food business licence (including five arrests with seizure actions). Besides, FEHD conducted two joint enforcement operations with the Police at the above outdoor barbecue sites in the past year and referred other irregularities (such as selling liquor without a licence, causing noise disturbance or breaching land lease conditions) found therein to other relevant Government departments for corresponding follow-up actions.
According to its records, FEHD has granted a total of 12 food business licences for operating outdoor barbecue sites, including two food factory licences and 10 fresh provision shop licences. From 2014 to 2016, FEHD received a total of 160 complaints about suspected operation of unlicensed food business at barbecue sites, 19 complaints about environmental hygiene nuisances caused by barbecue sites and nine about provision of unwholesome food or improper storage of food at barbecue sites.
Other relevant departments will also carry out investigation and follow-up actions if any illegalities or irregularities are found at any outdoor barbecue sites. From 2014 to 2016, the Environmental Protection Department received a total of 119 complaints about pollution caused by outdoor barbecue sites, while other relevant departments did not keep statistics on the numbers of complaints against the barbecue sites in various districts across the territory.
(2) FEHD staff conduct regular inspections of all licensed food premises. Upon detection of any irregularities, the staff will issue warnings or institute prosecutions as appropriate. In case of persistent breaches by the licensee, his/her licence will be subject to suspension or cancellation by FEHD under the Demerit Points System and the Warning Letter System.
From 2014 to 2016, FEHD issued a total of four verbal warnings to licensed food premises operating outdoor barbecue business for violating the licensing conditions. No such premises were prosecuted or convicted for their violation in the same period.
Under the Regulation, any person who operates a food business without a licence commits an offence and is liable on conviction to a maximum fine of $50,000 and imprisonment for up to six months and a daily fine of $900 should the offence persist. According to records, among the cases prosecuted by FEHD and convicted in the past year for operating unlicensed food business at the barbecue sites mentioned above, the lowest, highest and average amounts of fines were $1,200, $10,000 and $4,292 respectively. When the court hears a case where a barbeque site has been repeatedly involved in the operation of an unlicensed food business, FEHD will present to the court information about the offender's previous related convictions and the number of relevant complaints to help the court determine the appropriate penalty. FEHD may also apply to the court for a closure order under section 128B of the Public Health and Municipal Services Ordinance to close an unlicensed restaurant.
Generally speaking, other relevant departments will, in the light of individual circumstances, take appropriate actions against any illegalities or irregularities found at outdoor barbecue sites within their ambit and according to the powers vested by the relevant ordinances. Such illegalities or irregularities include contravention of the Fire Services Ordinance, the Dangerous Goods Ordinance, the Dutiable Commodities (Liquor) Regulations, the Buildings Ordinance, land lease conditions and relevant pollution control ordinances.
Currently, FEHD and relevant departments are vested with adequate power to deal with the problems related to the operation of unlicensed food business at barbecue sites. They will continue to closely monitor the issues associated with the operation of unlicensed food business at barbecue sites, and step up enforcement efforts to combat illegal practices as and when necessary.
(3) FEHD has put in place the Demerit Points System and the Warning Letter System to regulate licensed food premises (including licensed barbecue sites). Under the Demerit Points System, a pre-determined number of demerit points will be registered against a licensee upon conviction of an offence in relation to food safety and environmental hygiene under the Public Health and Municipal Services Ordinance and its subsidiary legislation. The licence will be suspended or cancelled if specific demerit points are incurred within a specified period of time. Under the Warning Letter System, FEHD will issue warning letters to licensees when their licensed food premises are found in breach of licensing conditions. Persistent breaches of licensing conditions by a licensee after receiving warning letters will lead to cancellation of his/her licence.
All in all, to effectively combat the environmental hygiene nuisances caused by the operation of unlicensed business at outdoor barbecue sites, we need the concerted efforts of relevant Government departments to take appropriate enforcement actions within their ambit.
Ends/Wednesday, June 14, 2017
Issued at HKT 15:10
Issued at HKT 15:10
NNNN