ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me upon petition for a contested case hearing following the decision of the South Carolina Department of Health and Environmental Control (“DHEC”) to revoke the food service permit of Cuatro Caminos for its business at 1111 Knox Abbott Drive, Cayce, South Carolina. After timely notice to the parties, a hearing was conducted on May 12, 2003, at the Administrative Law Judge Division (“ALJD”) in Columbia, South Carolina. Based upon the testimony and evidence presented, I find that the food service permit at issue should be revoked.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following findings of fact:
1. Cuatro Caminos is a retail food establishment which holds a food service permit (Food Service Permit No. 32-206-2616) for its business at 1111 Knox Abbott Drive, Cayce, South Carolina.
2. DHEC conducts follow-up inspections and routine inspections of retail food service establishments. A “follow-up inspection” is “conducted to confirm correction of violation(s) recorded during a previous inspection.” 24A S.C. Code Ann. Regs. 61‑25, Chapter I (A)(10) (Supp. 2002). A “routine inspection” is “an unannounced inspection of a retail food establishment conducted to determine the sanitary conditions within that establishment.” 24A S.C. Code Ann. Regs. 61‑25, Chapter I (A)(27) (Supp. 2002).
3. On November 21, 2002, Lisa Woehler, a former employee of DHEC, made a follow-up inspection of Cuatro Caminos for the purpose of determining whether appropriate corrective action had been taken in response to violations cited during a routine inspection made on November 18, 2002. Prior notice had been provided to Cuatro Caminos that the follow-up inspection would be conducted on November 21, 2002. This follow-up inspection revealed that appropriate corrective action had not been taken on a number of the violations cited in the November 18, 2002 report and resulted in a score of 89 out of 100 and a grade of A.
4. On November 21, 2002, while on the premises to conduct the follow-up inspection, Ms. Woehler noticed conditions that had not been cited in the November 18, 2002 routine inspection which caused her to be concerned about the sanitary conditions of the restaurant. She then decided to conduct a routine inspection of Cuatro Caminos. No prior notice or announcement had been provided to Cuatro Caminos that an inspection to determine the sanitary conditions of the establishment would be conducted on this day. The routine inspection revealed various violations of DHEC’s regulations governing food service establishments, including six critical violations and eleven repeat violations. As a result, Cuatro Caminos received a rating score of 64 on the inspection and a grade of C.
5. Although some of the violations contained in the routine inspection report of November 21, 2002 were the same as contained in the follow-up inspection report of the same date, there were no violations in the follow-up inspection report which were not in the routine inspection report of November 18, 2002. Therefore, Cuatro Caminos had had three days to correct the violations contained in the follow-up inspection report of November 21, 2002.
6. On January 14, 2003, Wendy Reed conducted a routine inspection of Cuatro Caminos. The inspection again revealed violations, including ten critical violations. Ms. Reed was accompanied on this inspection by Roxy Crawford, then the District Food Supervisor for DHEC, who verified the violations. As a result of this inspection, Cuatro Caminos received a rating score of 49 and was issued a grade of C.
7. At the conclusion of the January 14, 2003 inspection, Mr. Crawford had a conversation with Gerardo Martinez, Cuatro Caminos’s owner, in which Mr. Crawford explained the violations and DHEC’s policy concerning permit revocation. Mr. Martinez understood the explanations of the violations and the policy given to him in English by Mr. Crawford. It was noted on the January 14, 2003 inspection report that the permanent revocation policy had been discussed.
8. On January 15, 2003, Mr. Crawford notified Cuatro Caminos by certified letter that, if it scored below 70 on the next routine inspection, action would be taken to revoke its food service permit. Mr. Crawford also notified Mr. Martinez that Ms. Reed was available upon request to provide him and his employees the opportunity for a training session at his facility in an effort to prevent a third routine inspection being less than 70.
9. On March 5, 2003, Ms. Reed conducted a third consecutive routine inspection of Cuatro Caminos. Tammy Gordon, from DHEC’s Division of Food Protection, accompanied Ms. Reed during this inspection. This third consecutive routine inspection also revealed violations of DHEC’s regulations, including eight critical violations. Cuatro Caminos received a rating score of 61 as a result of this inspection and was issued a grade of C. Ms. Gordon discussed the permit revocation process with the wife of Mr. Martinez. Mrs. Martinez spoke fluent English.
10. On March 6, 2003, Ms. Reed sent Cuatro Caminos a letter informing it that its food service permit was being revoked. Cuatro Caminos timely appealed DHEC’s notification of revocation, and the matter was transferred to the ALJD for a contested case hearing.
11. The critical and other violations cited against Cuatro Caminos in the three consecutive routine inspections of November 21, 2002, January 14, 2003, and March 5, 2003 are as summarized and outlined in Respondent’s Exhibit Nos. 4, 8, and 11, respectively.
12. Additional follow-up inspections were conducted by DHEC personnel on November 22, 2002, December 5, 2002, December 17, 2002, January 16, 2003, and February 14, 2003, resulting in scores of 96, 97, 100, 97, and 100, respectively.
13. Since 1999, as a result of at least two routine inspections other than those already noted herein, Cuatro Caminos received inspection scores of less than 70. On at least one occasion, Cuatro Caminos was immediately closed due to an imminent health hazard discovered during a routine inspection.
14. Cuatro Caminos was not treated differently, or inspected more often, than other similarly situated restaurants, nor were the inspections, although by necessity partly subjective, done in an arbitrary and/or capricious manner.
CONCLUSIONS OF LAW
Based upon the above-listed findings of fact, I conclude the following as a matter of law:
1. The ALJD has subject matter jurisdiction in this action. S.C. Code Ann. § 1‑23‑600(B) (Supp. 2002) and § 44‑1‑50 (2002); 24A S.C. Code Ann. Regs. 61‑25, Chapter XIV (C)(3) and (E)(6) (Supp. 2002).
2. S.C. Code Ann. § 44‑1‑140(2) (2002) provides the authority for DHEC to promulgate regulations relating to the operation of food service establishments.
3. 24A S.C. Code Ann. Regs. 61‑25 (Supp. 2002) is the applicable DHEC regulation governing standards for retail food establishments, including permitting, inspection, and compliance procedures.
4. A valid permit issued by DHEC is necessary to operate a food service establishment.
5. A food service permit “may be revoked when three consecutive routine inspections have a rating score of below 70.” 24A S.C. Code Ann. Regs. 61‑25, Chapter XIV (E)(2) (Supp. 2002).
On the second routine inspection, the health authority shall be accompanied by a supervisor for verification of violations. When the second routine inspection results in a score below 70, the health authority will note on the inspection report that if the next “routine” inspection score is less than 70, action will be initiated to revoke the permit. In addition, the health authority shall notify the permit holder, by letter, of the stated intentions. On the third routine inspection, the health authority shall be accompanied by a representative of the Division of Food Protection. If the third consecutive routine inspection results in a score below 70, the health authority shall issue a grade C and note on the inspection report that revocation shall be initiated.
Id.
6. Because the November 21, 2002 inspection, which was conducted at the time of the follow-up inspection, had not been noticed or announced and was conducted to determine the sanitary conditions within the establishment, it was a routine inspection. The fact that Cuatro Caminos knew DHEC personnel would be on the premises for a follow-up inspection, which has a different purpose than a routine inspection, does not invalidate the routine inspection. Conducting a follow-up inspection and a routine inspection contemporaneously is not prohibited.
7. Cuatro Caminos had been given three days to correct the violations cited in the follow-up inspection phase of the November 21, 2002 inspection, as each of these violations had previously been cited in the November18, 2002 routine inspection and should have been corrected by November 21, 2002.
8. Language and/or communication problems have not been a primary contributor to the inability of Cuatro Caminos to maintain continuous compliance. At the conclusion of the January 14, 2003 inspection Mr. Martinez stated that he understood the explanations Mr. Crawford had given him in English. Further, although a translator was used during the hearing for the examination of Mr. Martinez to convert English into Spanish and Spanish into English, Mr. Martinez began answering a question posed to him in English prior to allowing the translator to translate the question into Spanish, thus showing an ability to understand English. In addition, at the conclusion of the March 5, 2003 routine inspection, Ms. Gordon had a discussion with Ms. Martinez, wife of the owner and an employee of Cuatro Caminos, during which Mrs. Martinez spoke fluent English.
9. Although Mr. Martinez testified that he would be willing to receive DHEC training, Cuatro Caminos did not convince this tribunal that it has taken, or will take, the steps necessary to ensure compliance with DHEC regulations in the future. By way of example, during the hearing no offer was made by Cuatro Caminos to hire a professional restaurant consultant to create and help institute a plan for the restaurant to assure that proper procedures are followed in food preparation and storage.
10. For the consecutive routine inspections dated November 21, 2002, January 14, 2003, and March 5, 2003, Cuatro Caminos scored a 64, 49, and 61 respectively. Although the violations, as summarized and outlined in the Respondent’s Exhibits Nos. 4, 8, and 11, are too numerous to discuss in detail, they permeate virtually every aspect of Cuarto Caminos’s operation. A total of at least 24 critical violations were noted during these inspections. Violations included pest (including roaches) and rodent control problems, bugs found in stored food, food stored and served at improper temperatures, mold growing on food, toxic chemicals improperly stored, food improperly labeled, and facilities improperly maintained. No circumstances were presented which warrant mitigation. Therefore, I conclude that revocation of the permit is appropriate and, under these circumstances, virtually mandatory. Revocation of a permit is not necessarily permanent. There is no time period which must expire prior to filing for another permit. However, Cuatro Caminos must convince DHEC that it can develop and follow proper procedures in food preparation, storage, and serving. This tribunal is mindful and gravely concerned about the financial impact the closing of this business, even temporarily, will have on Mr. Martinez, his family, and his employees. However, this financial concern cannot be placed above the health of the public.
11. I find that the elements of 24A S.C. Code Ann. Regs. 61‑25, Chapter XIV (E)(2) (Supp. 2002) have been met in this case and that revocation of the permit is appropriate.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that Food Service Permit No. 32-206-2616 for Cuatro Caminos for its location at 1111 Knox Abbott Drive, Cayce, South Carolina, is revoked;
AND IT IS SO ORDERED.
_________________________________
C. DUKES SCOTT
Administrative Law Judge
May 19, 2003
Columbia, South Carolina
A “critical violation” is a provision of 24A S.C. Code Ann. Regs. 61‑25 (Supp. 2002)
that, if violated, is more likely than other violations to contribute to food contamination, illness, or environmental degradation. 24A S.C. Code Ann. Regs. 61‑25, Chapter I (6) (Supp. 2002).
Counsel for Cuatro Caminos stated at the hearing that no constitutional arguments and no accusations against DHEC personnel were being made.
Although other inspections were conducted between these routine inspections in which
scores of greater than 70 were recorded, these were follow-up inspections and not routine inspections.
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