SC Administrative Law Court Decisions

The South Carolina Department of Health and Environmental Control (DHEC), Petitioner, and Penachio’s, Respondent, hereby enter into the following Consent Agreement:

Whereas, DHEC is charged with administering the food service facility inspection program in accordance with S.C. Code Ann. Section 44-1-140 (2) and S.C. Regulation 61-25; and

Whereas, DHEC has conducted a number of inspections of Penachio’s in accordance with statutory and regulatory requirements; and

Whereas, as a result of three unannounced consecutive routine inspections on June 3, 2008, July 31, 2008, and September 22, 2008, Penachio’s received scores below 70 of 52, 55, and 62, respectively; and

Whereas, DHEC notified Penachio’s of its intent to revoke Penachio’s food service permit for violations of Regulation 61-25 by Order dated September 24, 2008; and

Whereas, on October 6, 2008, Penachio’s requested a review conference before the DHEC Board, and on November 6, 2008, sought a contested case review at the Administrative Law Court (ALC); and

Whereas, the parties now desire to settle this matter without further adjudication;

NOW THEREFORE IT IS ORDERED AND AGREED:

1) The September 24, 2008 Administrative Order to revoke Penachio’s Food Service Permit No. 10-206-05087 is vacated;

2) This Consent Order of Dismissal voluntarily dismisses, with prejudice, the pending Request for Contested Case Hearing;

3) Penachio’s will comply with applicable statutory and regulatory requirements for food service establishments;

4) DHEC shall conduct regular unannounced inspections in accordance with the procedures of R. 61-25 at Penachio’s;

5) Penachio’s permit will be suspended and the facility will cease all food service operations for 14 days, beginning on Thursday, January 1, 2008;

6) Penachio’s will pay a civil penalty of $3,000 prior to reopening after the 14 day suspension period. If the penalty is not paid by the end of the suspension period, the 14 day suspension period will continue until the $3,000 is paid in full;

7) Penachio’s will maintain all structural and equipment aspects noted in the inspections of June 3, July 31, and September 22, prior to reopening after the 14-day suspension period;

8) Any new hire within 365 days after execution of this Order must attend the Region 7 Food Class within 60 days of employment. If the new hire does not score an 80 or higher on the written examination, he or she must attend the next available training session and take the written examination again. The new hire will be required to attend each subsequent available training session until she has scored an 80 or higher on the written examination;

9) All employees of Penachio’s must also attend and successfully complete an in-house food safety training, to include a video, a walk through of the facility, and an examination. The in-house training is scheduled for Monday, December 15, 2008. To demonstrate successful completion of the training, each employee attending the in-house training session in food sanitation must take a written examination and must score an 80 or higher on the written examination. If an employee does not score an 80, the employee can repeat the examination on December 15 and the morning of December 16 until the employee scores an 80 or higher. If the training is not successfully completed by all employees scoring an 80 or higher, Penachio’s will repeat the training session on December 16, 2008;

10) Within 10 days of the beginning of the suspension period, Penachio’s shall submit to a DHEC food safety management plan approved by DHEC that outlines how they will control critical risk factors and critical violations and maintain an A grade. The plan must address the following issues: the risk factor to be controlled; how it is to be controlled; who is responsible for control; what monitoring, corrective actions, and record keeping are required; and when and how often monitoring will occur. The plan must address the following risk factors: food from unsafe sources; inadequate cooking; improper holding; contaminated equipment; poor personal hygiene; and entrance of insects and vermin;

11) Within 10 days of the beginning of the suspension period, Penachio’s shall also submit a plan to control basic operational and sanitation conditions within the facility. The plan must address the following issues: equipment and facility maintenance; correct equipment operation; and facility and equipment cleaning schedules;

12) DHEC must be available to Penachio’s at the facility on December 15, and thereafter by telephone, to assist with the structure and organization of the plans listed in Paragraphs 10 and 11. DHEC must provide feedback or approval to Penachio’s within 5 days of the plans being submitted. If plans are not submitted and approved, the 14 day suspension period will continue until the plans are submitted and approved;

13) Penachio’s must submit to DHEC evidence of continuing pest control by a licensed provider prior to the opening. If evidence is not submitted, the 14 day suspension period will continue until evidence is submitted;

14) When a consecutive critical violation of the same item is discovered during a routine or a follow-up inspection during the 365 days following the effective date of this Order, the Department will suspend Penachio’s food service operation permit for seven (7) days pursuant to Regulation 61-25, Chapter XIV(L)(2), and Penachio’s shall not operate during the period of suspension;

15) If, during the 365 days following the effective date of this Order, Penachio’s scores below 70 on any unannounced inspection, as verified by the District Food Supervisor of the DHEC’s Public Health Region 7, Penachio’s agrees to suspend food service operations for a period of fifteen (15) days to bring the restaurant in compliance with Regulation 61-25. Penachio’s shall not operate during this suspension period. Penachio’s agrees to suspend its food service operations no later than 24 hours after Penachio’s receipt of notice of the specific reasons for the score below 70. Penachio’s suspension of food service operations shall follow the procedures outlined in a) and b) below. Provided, however, that DHEC maintains the right to suspend the permit and direct Penachio’s to cease operations immediately pursuant to its emergency powers described in Regulation 61-25, Chapter XIV(C)(2).

a) The DHEC inspector and the District Food Supervisor of DHEC’s Public Health Region 7 shall provide to the Penachio’s employee in charge at the time of inspection a completed DHEC inspection report and shall remove the posted grade from the establishment.

b) Upon request of Penachio’s, but not sooner than fourteen (14) days after commencement of the suspension, DHEC shall conduct an inspection of Penachio’s and shall assign the appropriate grade. Upon posting of a grade of A, Penachio’s may resume operations.

16) In the event that the Penachio’s food service permit has been suspended once in accordance with the provisions of Paragraph 15 above, and Penachio’s subsequently fails to achieve a rating score of at least 70 at any time during the period of 365 days from the effective date of the Order, as a result of a routine inspection, which is verified by the District Food Supervisor of DHEC’s Public Health Region 7, DHEC shall revoke Food Service Permit No. 10-206-05087 pursuant to Regulation 61-25, Chapter XIV(E)(2).

__________________________________

John D. McLeod

Administrative Law Judge

S.C. Administrative Law Court

____________________, 2008December 15, 2008

Columbia, South Carolina

WE SO CONSENT: