On January 13, 2009, this court issued a final order and decision (“final order”) in this matter. In the final order, this court ordered Respondent, Windy Hill Orchard and Cider Mill, Inc., to pay the sum of $24,000.00 as a civil penalty to the South Carolina Department of Health and Environmental Control (“Department”) for failing to obtain a permit from the Department to conduct a retail food establishment (“permit”) at its location at 1860 SC Highway 5 (Black Highway), York, South Carolina (“location”) as required by S.C. Code Ann. § 44-1-140(2) and S.C. Code Ann. Regs. 61-25. Further, the court prohibited Respondent from preparing, selling and serving food at its location until it obtained the permit. In addition, the court held Respondent in contempt of Judge Paige J. Gossett’s order dated August 11, 2008 and issued a sanction in the amount of $12,000.00.
On January 28, 2009, Respondent filed a notice of appeal with the South Carolina Court of Appeals. After the filing of the appeal, the Department sought collection of the civil penalty ordered by this court in its final order. On April 2, 2009, the Department filed a Motion for Civil Contempt (“Motion”) with this court.
The Department asserted in a memorandum attached to the Motion that the appeal of the final order did not stay its provisions. It cited the rule in Rule 225(a), SCACR which provides that an order is automatically stayed when a case is appealed to the Court of Appeals. However, the Department noted that the automatic stay provision contained in the appellate court rule is not applicable when a statute provides otherwise. Further, the Department stated in the memorandum that S.C. Code Ann. §1-23-600 (G)(5) provides that a “final decision issued by the Administrative Law Court in a contested case may not be stayed except by order of the Administrative Law Court, the court of appeals, or in cases when Section 1-23-610(A) applies, the appropriate board or commission.” Based upon this statutory provision, the Department correctly opined that this court has jurisdiction to address the issues presented in its Motion.
After written notice to the parties, a hearing was held on May 14, 2009 at the offices of the court in Columbia, South Carolina. After the hearing had commenced and testimony had been presented, Petitioner indicated a desire that the court issue an order holding in abeyance all fines, sanctions, and interest which had accrued and would accrue in the future, pending the appeal and presented a suggested order to the court for consideration. See Petitioner’s Exhibit 1. The court, acting in deference to the wishes of the parties, instructed them at the conclusion of the hearing to submit a more complete proposed order for consideration.
On May 15, 2009, Mr. Mills filed a motion to be relieved as co-counsel in this matter. Petitioner is represented by two attorneys: David B. Sample, Esq. of Rock Hill, South Carolina (during the hearing process) and J. Christopher Mills, Esq. (as co-counsel subsequent to the issuance of the final order). Mr. Mills states in the motion that his co-counsel has worked with Respondent at length in this matter, and that Mr. Sample would not be unduly burdened if the court grants his motion. Further, he asserts that Respondent will not be prejudiced if this motion is granted. Mr. Mills states that he has consulted with Respondent, Mr. Sample and Mr. Penn, legal counsel for the Department, and that all consent to the motion. Mr. Mills attached to the motion an affidavit attesting that the motion had been mailed, postage prepaid, on May 15, 2009 to Respondent, Mr. Sample and Mr. Penn. No one has filed an objection to the motion. The court, after reviewing Rule 407, Rule 1.16(b) of the Rules of Professional Conduct, finds that it is in the best interest of both Respondent and Mr. Mills that Mr. Mills be relieved of any legal representation of Respondent in this matter and grants the motion.
The parties submitted a proposed order for the court’s consideration on May 29, 2009. After reading the proposed order, the court felt inclined to discuss its contents with the parties and initiated a telephonic conference with them on June 1, 2009. The order which follows contains understandings the court had with the parties during that conference.
It is hereby
ORDERED that Petitioner South Carolina Department of Health and Environmental Control will withdraw its Motion for Civil Contempt; and it is further
ORDERED that the $24,000.00 civil penalty assessed against Respondent in the final order is stayed while this case is pending on appeal; and it is further
ORDERED that interest, including interest as set forth in S.C. Code Ann. § 34-31-20, will not accrue on the civil penalty while this matter is on appeal; and it is further
ORDERED that the $12,000.00 sanction assessed against Respondent in the final order is stayed while this case is pending on appeal; and it is further
ORDERED that interest, including interest as set forth in S.C. Code § 34-31-20, will not accrue on the sanction while this case is pending on appeal; and it is further
ORDERED that the provision in the final order which requires Respondent to “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” remains in effect pending the appeal; and it is further
ORDERED that J. Christopher Mills is relieved as counsel for Respondent in this matter;
AND IT IS SO ORDERED.
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June 5, 2009 Marvin F. Kittrell
Columbia, South Carolina Chief Judge
