SC Administrative Law Court Decisions

This matter comes before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007) and 44-1-60(F) (Supp. 2007). Respondent Windy Hill Orchard and Cider Mill, Inc. (“Windy Hill”) filed a request for a contested case hearing on January 11, 2008, challenging the November 2, 2007 Administrative Order (“Order”) of Petitioner South Carolina Department of Health and Environmental Control (“Department” or “DHEC”).^[1] The Department ordered Windy Hill to cease food preparation and service unless it obtained a Regulation 61-25 retail food establishment permit (“Reg. 61-25 permit” or “permit”) from the Department, imposed on Windy Hill a five thousand dollar ($5,000.00) civil penalty, and notified Windy Hill that civil penalties would continue to accumulate at one thousand dollars ($1,000.00) per day if it continued to operate without obtaining the permit. Windy Hill asserts that it was not required to obtain the permit because it is a permanent food stand, and that the Department had previously determined it did not have to obtain one.

After timely notice to the parties, a hearing was held on November 24, 2008 at the offices of the ALC in Columbia, South Carolina. All parties appeared at the hearing during which evidence was introduced and testimony was given. After carefully considering all the testimony and evidence presented during the hearing, the Court finds and concludes that Windy Hill must cease all food service operations until it obtains a Reg. 61-25 permit from the Department, must pay a civil penalty to the Department in the amount of twenty-four thousand dollars ($24,000.00), and must pay a sanction to the Court in the amount of twelve thousand dollars ($12,000.00).

FINDINGS OF FACT

Having observed the witnesses and reviewed the exhibits presented at the hearing and closely passed upon their credibility, and having taken into consideration the burden of persuasion by the parties, the Court makes the following Findings of Fact:

1.                  Windy Hill is an agro-tourism business that is located in York County, South Carolina. It began operating in 1989 under the name “Everything Apples, Inc.” Initially, it was primarily engaged in the business of making cider, apple pies, apple butter, and cider donuts. Windy Hill has expanded its operation and, in addition, provides educational tours of its apple orchard. Windy Hill allows its customers to pick apples for purchase, observe cider making, and visit with its farm animals. Windy Hill also operates a roadside market.

2. Fritz Gusmer is Windy Hill’s founder and its Chief Executive Officer. His duties include farming and entertaining its patrons.

3. Windy Hill sells donuts, apple pies, apple fried pies, sippers,^[2] popcorn, candy apples, and a variety of canned goods – including apple butter, pumpkin butter, and strawberry butter – at its roadside market.

4. There is a desk, two (2) sixty-gallon stainless steel steam kettles, a commercial-sized convection oven, a bathroom, a mop sink, a three-basin sink, three (3) stainless steel tables, an overhead storage for pie boxes and containers, and a twelve foot by twenty-two foot walk-in cooler in Windy Hill’s primary operating building.

The three-basin sink is stainless steel and has three basins with drains and faucets. Each basin is used for a specific purpose: to clean, to sanitize, and to rinse utensils, pots and other items used in food preparation. The sink is a food service industry standard and is approximately eight feet long, thirty inches wide, and twenty-four inches deep.

5. Windy Hill’s agro-tourism activities are seasonal. It operated from August until approximately Christmas during its season in 2007.

6. During the 2007 season, Windy Hill prepared and served pre-made and precooked frozen meatballs to its patrons during its annual Apple Harvest Festival. This festival is generally held on the third Saturday in October of each year. The meatballs are received in a frozen state from a vendor and kept in a freezer. They are thawed and heated in a sixty-gallon steam kettle for several minutes. Apple butter sauce is mixed with them while they are being cooked. After they have been thoroughly cooked, some of them are transferred to a crock-pot, and they are served to customers from the crock-pot. Those meatballs remaining in the steam kettle are kept at a hot temperature.

7. The “apple pies” which Windy Hill sells to its patrons are 10” in diameter, weigh about three pounds, and are received in a frozen state from a vendor. The baking process involves their placement on baking sheets which are put in a commercial convection oven that has double stainless steel doors and four shelves. Windy Hill bakes, at a minimum, sixteen pies each day (Monday through Saturday), from August to December. The pies bake for about forty-five minutes and are placed on a sheet pan rack for cooling. After cooling, they are put into pie boxes and placed on display at the roadside market.

8. The “fried apple pies,” cooked and prepared at Windy Hill, are similar to fried apple turnovers. They are received from a vendor in a frozen state and are kept in a separate freezer from the frozen apple pies. Windy Hill cooks thirty-two fried apple pies at a time in a fryer.^[3] It takes approximately six minutes and thirty seconds to cook them. After they have cooled, they are packaged in a french-fry bag and put into the same type pie box as the apple pies. Thereafter, they are put on display at the roadside market. Fried apple pies are prepared at least once a day (Monday through Saturday), from August to December.

9. Windy Hill prepares two varieties of donuts: “cake donuts” and “precooked donuts.” The “cake donuts” are made at Windy Hill from a dry batter mix.^[4] The “precooked donuts” are purchased from a vendor in a frozen state; thereafter, they are thawed and cooked.

10. During its 2007 season, Windy Hill used the dry batter mix to prepare its “cake donuts.” It made cake donuts each day (Monday through Saturday), from August to December. The batter mix was stored in a thirty gallon pail, which has wheels and a lid. In order to make the cake donuts, Windy Hill would measure twenty pounds of the batter mix, put it into a twenty quart electric power mixer, and mix it with approximately four pounds, eight ounces of cider. After it was mixed, the batter was poured into a donut hopper (a two gallon container that held approximately sixteen pounds of batter mix). The batter mix then dropped one donut at a time into the donut fryer where each donut was cooked one minute on each side.^[5] After cooking, each donut dropped onto a stainless steel carousel. The donuts, in quantities of three to four dozen, remained on the carousel for approximately six minutes. Thereafter, they were removed from the carousel and placed onto a sheet pan to cool. Cinnamon sugar was added to approximately one-half of the donuts.

Each day, Windy Hill cleaned the equipment used to make the cake donuts. It washed the bowl and dough hook from the electric mixer in the three basin sink. Sometimes, it washed the equipment between batches. The donut batter hopper is disassembled and washed in the sink each time it is used, which could be multiple times each day. Also, the donut sheet pans and the carousel are washed in hot water in the sink. The carousel is sprayed, washed, and sanitized. The sprayer, similar to a garden hose, has a pistol grip and a Food and Drug Administration (“FDA”) “food grade” hose. Windy Hill routinely empties and filters the frying oil and cleans the crumbs from the frying container.

11. Typically, the “precooked donuts” are thawed in quantities of three hundred in bulk containers overnight in the walk-in cooler. The next day they are taken out of the containers, put into clam shell donut boxes, and displayed for retail sale at the roadside market.

12. Department personnel visited Windy Hill twice to inform Mr. Gusmer that Windy Hill was in violation of Reg. 61-25 because it had not been issued by the Department a Reg. 61-25 retail food establishment permit for its operation during the 2007 season. Further, it was explained to Mr. Gusmer at a meeting at the York County Health Department that if he wished to cook food at Windy Hill, the facility must obtain the permit.

Notwithstanding, Mr. Gusmer asserts that Windy Hill is not required to obtain a retail food establishment permit from the Department because the operations there qualify as a permanent food stand under an exception contained in Reg. 61-25, Chapter I.26(c)12.

13. Jerilyn Greulich (“Ms. Greulich”) is a restaurant inspector with the Department. She has been employed at its York County field office since 2001. Ms. Greulich received training with the FDA in food safety and food-borne illnesses. She inspects permitted and non-permitted facilities to ensure they are in compliance with Reg. 61-25. Also, she investigates complaints and food-borne illness outbreaks. The Windy Hill facility is within her area of responsibility.

Ms. Greulich first became aware of Windy Hill’s operations in the fall of 2005. She drove by Windy Hill while she was out of the office inspecting other facilities. Ms. Greulich saw various food products in the retail fruit stand at Windy Hill, and she smelled food while it was being cooked. Ms. Greulich discussed the operations at Windy Hill with Mr. Gusmer and requested to see the food that was being cooked. Her request was refused. After she left, she told her supervisor, Ken Beaty (“Mr. Beaty”), about the visit and what she had observed.

14. Ms. Greulich returned to Windy Hill on November 8, 2006. She saw signs there that stated that pies, butters, and free range eggs were for sale. She stopped and asked an employee if she could speak with the owner. She was told that the owner was too busy to talk with her and that she would have to leave a message. While she was there, she did not see any food being prepared. Before she left, she gave to an employee there one of Mr. Beaty’s business cards and requested that she ask the owner to telephone Mr. Beaty. Upon return to the office, she informed Mr. Beaty that Windy Hill was in operation.

Subsequently, Mr. Beaty attempted to talk with Mr. Gusmer via telephone but was told by an employee that Mr. Gusmer was too busy to speak with him.

15. On May 17, 2007, Ms. Greulich, Mr. Beaty, an employee of the South Carolina Department of Agriculture, and others, met with Mr. Gusmer at Windy Hill. Ms. Greulich, at the invitation of Mr. Gusmer, inspected the facility and observed in its kitchen a three compartment sink, different types of cooking equipment, some containers and some labels.^[6] Several issues were discussed during the meeting, including the cooking of food and the canning of goods by Windy Hill at its location, as well as the requirement for it to comply with the requirements of Reg. 61-25. Ms. Greulich gave to Mr. Gusmer a punch list of items that had to be done so Windy Hill could obtain the retail food establishment permit.

16. Mr. Beaty visited Windy Hill again on September 7, 2007. He was told by Mr. Gusmer that Windy Hill used precooked products from the U. S. Food Service, a local vendor, and that there would be no cooking there.

17. On October 20, 2007, Mr. Beaty once again visited Windy Hill. He visited because he was aware that it most probably conducting its annual Apple Harvest Festival. Mr. Beaty saw meatballs in a crock pot being served to customers and saw that Windy Hill was cooking donuts outside its facility. Also, Mr. Beaty saw chickens walking near the location where the donuts were frying. During the visit, he spoke with Mr. Gusmer and told him that Windy Hill had to upgrade its septic system, its kitchen, and to apply for a permit as did others who operated a retail food establishment. After he left, Mr. Beaty contacted Ms. Greulich and asked her to deliver to Mr. Gusmer a written official notice from the Department, informing him that Windy Hill was in violation of Reg. 61-25 and that it had to apply for and obtain a retail food establishment permit.

That same day Ms. Greulich went to Windy Hill. She also observed donuts being cooked in the donut fryer. Thereafter, she issued a written official notice (“notice to cease cooking onsite without a permit”) to Fritz and Catherine Gusmer. It stated that the Department had the legal responsibility for insuring that food provided for service to the public is safe and prepared in facilities that meet the requirements for retail food establishments as set forth in Reg. 61-25. The notice also stated that no person shall operate a retail food establishment without having obtained a permit from the Department. Mr. Gusmer refused to take the written notice from Ms. Greulich, when offered. Ms. Greulich then left a copy of the notice with Mrs. Gusmer.

18. On October 25, 2007, Ms. Greulich and Mr. Beaty again visited Windy Hill to determine if Windy Hill was continuing to cook subsequent to Ms. Greulich’s visit on October 20, 2007. Ms. Greulich observed the cooking of food. Also, she saw chickens within approximately ten feet of an employee who was cooking donuts in the donut fryer. She took a series of photographs of the donut cooking operation and of the chickens that were roaming throughout the donut-making area. Again, Ms. Greulich told Mr. Gusmer that he had to obtain a permit if he wished to prepare and cook donuts. She prepared and gave to Mr. Gusmer a second official notice which stated that Windy Hill was in violation of Reg. 61-25 for cooking food without a permit.

19. On October 26, 2007, Mr. Gusmer met with Mr. Beaty and Ms. Greulich at the York County Health Department. They discussed the food cooking operations at Windy Hill and Mr. Gusmer again asserted that he was not required to obtain the retail food establishment permit. Mr. Beaty attempted to give Mr. Gusmer a letter which explained that Windy Hill was required to have a permit and that it could be subject to an enforcement action if it did not comply. Mr. Gusmer glanced at the letter, and the letter remained on the sofa when he left.

20. Ms. Greulich visited Windy Hill again on October 29, 2007. She saw food being prepared and cooked. On October 31, 2007, she visited the facility and once again saw food being prepared and cooked.

21. Michael Longshore (“Mr. Longshore”) is an employee with the enforcement section of the Department’s Bureau of Environmental Health (“Bureau”). The Bureau is responsible for the septic tank program that deals with wastewater, the Division of Food Protection, General Sanitation and camp sanitation. He has worked for the Department since 1988. His current job is Director of Enforcement for the Bureau. His duties include answering questions and providing consultation to the Bureau’s employees concerning enforcement issues. Once local Department employees are no longer able to get a facility to comply with applicable laws and regulations enforced by the Bureau, the matters are referred to his office.

Mr. Longshore became involved with the Windy Hill matter shortly after the October 26, 2007 meeting, when it was referred to his office. He reviewed the matter and concluded that Windy Hill was a retail food establishment, as defined in Reg. 61-25, which prepared, processed and served food for human consumption. He determined that the food preparation at Windy Hill did not fall within an exception to Reg. 61-25 sufficient to exempt it from obtaining the retail food establishment permit and concluded that Windy Hill was in violation of Regulation 61-25, Chapter 14(A).

Mr. Longshore prepared a public health order pursuant to the Department’s Uniform Enforcement Policy and Section 44-1-150. The order found that Windy Hill was in violation of Reg. 61-25 and was assessed a civil penalty in the amount of fifty-six thousand dollars ($56,000) based upon the number of days it prepared and served food without a permit.^[7]

22. Tammy Gordon (“Ms. Gordon”) is a Chief Survey Officer in the Bureau’s Division of Food Protection. She has been employed with the Department for eleven years. She assists the director of the division, writes policies, and interprets regulations.

Ms. Gordon has been trained and certified by the FDA’s Office of Regulatory Affairs in assessing complex food operations, identifying ‘out-of-control’ practices, identifying microorganisms that may be associated with a particular food or practice at issue, charting Critical Control Points, and developing Risk Control Plans specific to the retail food facility. She is recertified every three years. As part of her training with the FDA, Ms. Gordon teaches how to identify potentially hazardous foods and how to create Risk Control Plans to mitigate risks associated with such foods.

Ms. Gordon testified that the food operations subject to regulation, pursuant to Reg. 61-25, are those that prepare, for public consumption, potentially hazardous foods that require more than minimal preparation. She defined potentially hazardous foods to include raw food products, pies, and dry mixes. She testified that a facility qualifies as a permanent food stand (and is not required to obtain the retail food establishment permit) if it serves non-potentially hazardous foods and only has minimal food preparation. She testified that a non-potentially hazardous food is a food that has a water activity value of 0.85 or less or a food that has a hydrodine concentration PH level of 4.6 or below. She testified that minimal food preparations are processes that do not require cutting, mixing or extensive equipment, and identified the following as those that qualified: pretzels, popcorn, sno-cones, cotton candy, candy apples, french fries, soft drinks, draft beer, some pork skins, and boiled peanuts. However, she testified that establishments which engage in processes such as melting chocolate or scooping ice cream require a permit.

Ms. Gordon reviewed documents produced by Windy Hill during discovery, including the transcript of Mr. Gusmer’s deposition, and listened to his testimony during the hearing. She testified that the Department has a policy that dry milk batter is potentially hazardous, and once the batter mix used to make “cake donuts” at Windy Hill was mixed with cider, it became a potentially hazardous food. Further, she testified that pursuant to Reg. 61-25, Chapter 2(c)(2)(b), fluid milk, fluid milk products, reconstituted dry milk and dry milk products are required to be refrigerated at 45 degrees or below. Further, she testified that the process used to make the batter mix donuts constitutes a minimal preparation process. Accordingly, it was her opinion that the process for making the “cake donuts” involved a potentially hazardous product and more than minimal preparation, which prevented it from qualifying for exemption as a permanent food stand.

Ms. Gordon also testified that she was unable to give an opinion concerning Windy Hill’s process in preparing its apple pies and its fried apple pies – whether it involved potentially hazardous products – because she did not have enough information from Mr. Gusmer or the food vendor to determine what those products’ ingredients include.

23. Regarding Mr. Gusmer’s allegation that the Department informed Windy Hill that it did not need a food service permit based on inspections conducted in 1991 and 1992, Mr. Longshore testified that the current version of Reg. 61-25 was promulgated in 1993 and was completed with its passage by the Legislature and publication in the State Register in June 1995. Prior to 1995, there were two regulations governing retail food in South Carolina: Regulations 61-25 and 61-26. Regulation 61-25 dealt with food service establishments and was linked mostly to restaurants, while 61-26 dealt with retail markets, grocery stores, and convenience store operations. The revision was undertaken to combine the two regulations, resolve disparities between the two, and make sure all retail food establishments were covered by the new regulation. Mr. Longshore testified that Windy Hill’s Exhibits 2 and 3, the 1991 inspection and supplemental reports and the 1992 inspection documents, were created significantly before the current version of 61-25 was promulgated. He stated that it was possible that a facility could have been not required to get a permit under the old regulation but would now be required to get a permit under the new regulation.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I find and conclude the following as a matter of law:

1. S.C. Code Ann. § 44‑1‑140(2) provides the authority for the Department to promulgate regulations relating to the operation of food service establishments.

2. 24A S.C. Code Ann. Regs. 61‑25 is the applicable Department regulation governing standards for retail food establishments, including permitting, inspection, and compliance procedures.

3. 24A S.C. Code Ann. Regs. 61-25, Chapter I.A.26 defines a retail food establishment as any operation that prepares, packages, serves, processes, or otherwise provides food for human consumption, either on or off the premises, regardless of whether there is a charge for the food.

4. 24A S.C. Code Ann. Regs. 61-25, Chapter I.A.11 defines food as 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.

5. 24A S.C. Code Ann. Regs. 61-25, Chapter XIV.A. provides that “no person shall operate a retail food establishment who does not have a permit.”

6. 24A S.C. Code Ann. Regs. 61-25, Chapter I.A.26.c (12) provides an exception to the permit requirement: “Retail food establishments do not include: … Permanent food stands that serve non-potentially hazardous food which requires minimal or no preparation including pretzels, popcorn, sno-cones, cotton candy, candy apples, french fries, soft drinks, draft beer, and similar food.”

7. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

8. Based upon the testimony of the witnesses and the evidence presented at the hearing, the Court concludes for the reasons hereinafter provided, that during the period of time covered by the Department’s November 2, 2007 Administrative Order, Windy Hill operated as a retail food establishment which prepared and served foods that required more than minimal preparation and were potentially hazardous.

Previous Department Determination

Windy Hill asserts that in 1991 and 1992, the Department determined through a series of inspections that its operation did not qualify as a retail food establishment that required a permit. However, it presented no evidence of such, except the testimony of Mr. Gusmer. Although Windy Hill may have been told by the Department in 1992 that it did not have to obtain a retail food establishment permit, regulations later promulgated by the Department required such. Further, the Department made a number of efforts, both at Windy Hill and at its York County office, to inform Mr. Gusmer of the statutory and regulatory requirements, which he ignored.

Retail Food Establishments versus Permanent Food Stands

Reg. 61-25 defines food broadly as any raw, cooked, or processed edible substance or ingredient used or intended for use or for sale in whole or in part for human consumption. The testimony by Mr. Gusmer and witnesses for the Department establish that Windy Hill cooks and processes edible substances and ingredients that are intended for and consumed by human consumption. Further, the testimony and evidence clearly establishes that Windy Hill packages, serves, and sells the foods it processes for human consumption. Windy Hill prepared meatballs, pies, and cake donuts during the 2007 season for human consumption.

The sole question for the Court is whether the types of foods prepared and the methods used in preparing these foods qualified Windy Hill for the permanent food stand exception and therefore exempted it from the retail food establishment permit requirement.

In order to qualify as a permanent food stand, an operation must: (1) serve non-potentially hazardous foods; and (2) those foods must require minimal or no preparation. The Court finds that Windy Hill served at a minimum two foods that did not meet the requirements of this exception: freshly made cake donuts and meatballs. Windy Hill prepared the donut dough by mixing a powdered batter mix, which contained dried milk and egg products, with cider, which resulted in a potentially hazardous food. Windy Hill then extruded the resulting batter using a donut hopper which dropped the donuts in a fryer. The donuts were then cooled in the open on a large carousel and then transferred onto sheet pans. The process involved a potentially hazardous food, and it did not meet the “minimal or no preparation” requirement.

Likewise, the meatballs that were prepared for the Apple Harvest Festival do not qualify as a food appropriate for sale and consumption at a permanent food stand. Windy Hill receives the meatballs in a frozen state, stores them in a freezer for several days, and thereafter prepares them with apple butter barbeque sauce, in large quantities, in a sixty-gallon steam kettle. They are cooked for a few minutes and then transferred, several at a time, to a crock pot, before they are served to customers. This process involves a potentially hazardous food, and it does not meet the “minimal or no preparation” requirement.

The Court finds and concludes that it has insufficient information to determine if the apple pies, fried apple pies, or the precooked donuts are non-potentially hazardous foods. If a substance qualifies as a food under its definition in Reg. 61-25, and the facility wishes for the food to qualify as a non-potentially hazardous food, it has the burden to provide information to the Department sufficient to establish that it is non-potentially hazardous. Such was not done herein. Further, the Department does not have sufficient resources to test every food that a facility asserts is non-potentially hazardous.^[8]

Notice to Windy Hill

9. Windy Hill was given ample notice that it was required to obtain a permit from the Department. As set forth in the findings of fact, the Department made repeated efforts to inform Mr. Gusmer that Windy Hill had to obtain the permit and provided him with advance notice that it would be subject to enforcement action if it did not obtain one. Notwithstanding, Windy Hill chose to ignore the notices and warnings by the Department and continued to operate in violation of Reg. 61-25.

Calculation of the Civil Penalty

10. When assessing a penalty for failure to obtain a retail food establishment permit, the Department is not required to inspect a facility every day it operates to determine if it is preparing food each of those days. It is assumed the facility operated each day, unless there is evidence to the contrary. In this instance, there is evidence that Windy Hill was open only six days each week during the period October 27, 2007 through December 22, 2007. The Court finds that an appropriate penalty is $500.00 daily for the willful failure by Windy Hill to apply for and obtain a permit. Accordingly, based upon the forty-eight (48) days it was open and operational, preparing and selling potentially hazardous foods which required more than minimal preparation, the Court assesses a penalty in the amount of twenty-four thousand dollars ($24,000.00).

Sanction for Contempt of Court’s Order dated August 11, 2008

11. On August 11, 2008, this Court granted the Department’s motion to partially lift the automatic stay imposed in this case pursuant to S.C. Code Ann. § 1-23-600(H)(2). Under the Court’s Order, Windy Hill was permitted to open and operate as of August 23, 2008; however, Windy Hill was prohibited, during the pendency of this matter before the Court, from preparing or serving food at its facility until it obtained a Reg. 61-25 permit. On September 12, 2008, the Department filed a motion for a temporary injunction with the Court after it learned, through a September 4, 2008 deposition, that Windy Hill continued to prepare and serve the cake batter donuts at its facility subsequent to the Court’s August 11, 2008 Order. By consent agreement filed November 14, 2008, the Department withdrew its motion based upon Windy Hill’s notification to the Department on September 8, 2008 that it had ceased making the donuts. Based upon Mr. Gusmer’s testimony during the September 4, 2008 deposition, as well as during the hearing, he acknowledged that Windy Hill violated the Court’s August 11, 2008 Order from August 11, 2008 until September 8, 2008.^[9] As such, the Court finds that an appropriate penalty is five hundred dollars ($500.00) daily, payable to the Court, for the blatant disregard by Windy Hill of the Court’s August 11, 2008 Order. See Ex parte Kent, 379 S.C. 633, 666 S.E.2d 921 (Ct. App. 2008). Accordingly, based upon the twenty-four (24) days it was open and operational, preparing and selling potentially hazardous foods which required more than minimal preparation in violation of the Court’s Order, the Court assesses Windy Hill a penalty in the amount of twelve thousand dollars ($12,000.00).

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that Windy Hill shall pay a civil penalty in the sum of twenty-four thousand dollars ($24,000.00) to the Department within thirty (30) days from the date of this Order; and it is further

ORDERED that Windy Hill shall immediately cease all food preparation, food service and food sales, until such time that it obtains a retail food establishment permit from the Department or provides sufficient information to the Department to make a determination that all foods prepared and served qualify as non-potentially hazardous foods that require minimal preparations; and it is further

ORDERED that Windy Hill must remit to this Court twelve thousand dollars ($12,000.00) no later than thirty (30) days from the date of this Order for the willful violation of the Court’s August 11, 2008 Order; and it is further

ORDERED that this Court retains jurisdiction to enforce the terms and provisions of this Order.

AND IT IS SO ORDERED.

__________________________________

Marvin F. Kittrell

Chief Judge

January 13, 2009

Columbia, South Carolina