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Food Establishment Variances & Modifications
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"Variance" means a written document issued by the Department that authorizes a modification or waiver of one or more requirements of this Chapter, if, in the opinion of the Department, a health hazard or nuisance will not result from the modification or waiver.
310:257-15-3. Modifications and waivers
(b) Variances requested pursuant to this Subchapter are subject to approval by the Department. In order to have the variance approved, a license holder must submit a written application on a form provided by the Department. Any variance request shall be deemed denied unless the license holder subsequently receives notice of approval from the Department.
Click here for a variance application. The variance application may be submitted to the county health department where the establishment is located.
Variances must be approved for the following operations:
310:257-5-63. Variance requirement Pf
A food establishment shall obtain a variance from the Department as specified in OAC
310:257-15-3 and under OAC 310:257-15-4 before:
(1) Smoking food as a method of food preservation rather than as a method of flavor enhancement;
(2) Curing food;
(3) Using food additives or adding components such as vinegar:
(A) As a method of food preservation rather than as a method of flavor enhancement, or
(B) To render a food so that it is not potentially hazardous Time/Temperature Control for Safety Food;
(4) Packaging Time/Temperature Control for Safety Food using a reduced oxygen packaging method except where the growth of and toxin formation by Clostridium botulinum and the growth of Listeria monocytogenes are controlled as specified under OAC 310:257-5-64;
(5) Operating a molluscan shellfish life-support system display tank used to store and display shellfish that are offered for human consumption;
(6) Custom processing animals that are for personal use as food and not for sale or service in a food establishment;
(7) Sprouting seeds or beans; or
(8) Preparing food by another method that is determined by the Department to require a variance.
Or, a variance may be requested if an establishment has an existing, nonconforming use that existed on or before the effective date of a rule change.
310:257-15-3 (a) Whenever the Department adopts new rules or amends existing language in this Chapter, the owner of a food establishment may request that a variance be granted on any nonconforming use that may then exist, on or before the effective date of the rule change, at the license holder's place of operation. Such variance shall only be granted for the term of the current license period, or less.
Variances must be renewed annually prior to the expiration of the current license. The Department will include a copy of the previous year’s variance application with the renewal notice which may be updated and resubmitted. If not received, click here for a variance application to submit a renewal.
310:257-15-3(d)... Prior to the expiration of the current license, the licensee must apply in writing for renewal of the variance, on a form provided by the Department. The process for approval of the renewal is the same as the process for granting the original variance. Each "renewal" shall be considered a new, separate variance, and must be independently justified.
The food establishment printed license will have a “-V” denoted at the end of the name of any establishment with a valid variance. Any person with questions may contact the Oklahoma State Department of Health at ConsumerHealth@health.ok.gov or 405-271-5243 to verify the exact nature of the variance.
It is recommended any person purchasing a food establishment should verify the nature of the variance as any variance for a nonconforming use will be required to be updated to current code and will not be reissued.
At any time a business is modified or sold, the use which was nonconforming must be updated to be in compliance with current rules:
310:257-15-3. (c) If the license holder replaces the equipment or reconstructs the portion of the facility that is the subject of the variance, the new equipment or construction must conform to the rules of this Chapter.
310:257-15-3. (e) Variances are not considered to be part of the license and may be revoked at any time, for any reason, by the Department. The licensee shall not be entitled to a hearing prior to revocation, but will be provided written notice of any revocation along with instructions that the licensee must come into compliance by a date certain.
HACCP stands for Hazard Analysis Critical Control Point. In some instances, a variance will require a HACCP Plan. For more information on what a HACCP plan is and what it contains, click here.
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