ORDERS:
CONSENT AGREEMENT AND ORDER
Respondent South Carolina Department of Health and Environmental Control
(DHEC) and Petitioner Hardee's of Union hereby enter into the following
Consent Agreement and Order.
DHEC is charged with administering the food service facility inspection
program in accordance with S.C. Code Ann. § 44-1-140(2) (1985) and
S.C. Code Ann. Regs. 61-25 (Supp. 2000). Pursuant to this authority, DHEC
has conducted a number of inspections of Hardee's of Union in accordance
with statutory and regulatory requirements. As a result of these unannounced
inspections, Hardee's of Union has consistently demonstrated inadequate
compliance with statutory and regulatory requirements. Hardee's of Union's
violations include, but are not limited to, keeping potentially hazardous
foods at improper temperatures, using improper personal hygienic practices,
improperly sanitizing equipment and utensils, failing to control the presence
of insects, and improperly storing and using toxic materials.
DHEC has provided appropriate training to the staff of Hardee's of Union,
most recently on July 2, 2001. By letter dated August 3, 2001, DHEC notified
Hardee's of Union of its intent to revoke Hardee's of Union's food service
permit for violations of Regulation 61-25. Hardee's of Union timely appealed
DHEC's decision to revoke the food permit to the DHEC Clerk of the Board
on August 20, 2001. DHEC timely transmitted the request for appeal to the
Administrative Law Judge Division on August 24, 2001, and the case was
subsequently assigned to the Honorable John D. Geathers on August 28, 2001.
The parties now desire to settle this matter without further adjudication.
IT IS THEREFORE ORDERED AND AGREED that:
1. The notice of intent to revoke Food Service Permit Number 44-206-00388
issued to
Hardee's of Union is vacated.
2. Hardee's of Union will comply with applicable statutory and regulatory
requirements
for food service establishments.
3. The parties agree that DHEC has provided training to current employees
of Hardee's of Union concerning the applicable statutory and regulatory
requirements; however, nothing herein shall be construed to preclude an
offer by DHEC of additional training to Hardee's of Union staff, whether
separately or in conjunction with training provided to other restaurants
staffs at DHEC's discretion.
4. DHEC shall conduct regular unannounced inspections of Hardee's of
Union in accordance with the procedures of Regulation 61-25.
5. Within fifteen (15) days of the effective date of this Order, Hardee's
of Union shall
submit to DHEC a food service operations plan for operating an acceptable
food service establishment in accordance with Regulation 61-25. This plan
must be approved by DHEC.
6. If, during the 365 days following the effective date of this Order,
Hardee's of Union
scores below seventy (70) on any unannounced inspection as verified
by the District Food Supervisor of the Appalachia III Health District,
Food Services Permit Number 44-206-00388 shall be suspended for a period
of fifteen (15) days and Hardee's of Union shall not operate during the
period of suspension. This period of suspension shall commence no later
than twenty-four (24) hours after Hardee's of Union's receipt of notice
of the supervisor verification of the score of less than seventy. Hardee's
of Union shall have no right of appeal of this determination and consequent
fifteen-day suspension. However, DHEC maintains the right to suspend the
permit and direct Hardee's of Union to cease operations immediately pursuant
to its emergency powers described in Regulation 61-25, Chapter XIV.C.2.
A. The DHEC inspector shall provide a completed DHEC inspection report
to the Hardee's of Union employee in charge at the time of the inspection
and shall remove the posted grade from the establishment.
B. Upon request of Hardee's of Union, but not sooner than fourteen (14)
days after commencement of the suspension, DHEC shall conduct an inspection
of Hardee's of Union and shall assign the appropriate grade. Upon posting
of a grade of A, Hardee's of Union may resume operations.
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In the event that Hardee's of Union's food service permit has been suspended
once
in accordance with the provisions of Paragraph 6 above and Hardee's of
Union subsequently fails to achieve a rating score of at least seventy
(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 Appalachia III Health Director, DHEC shall
revoke Food Service Permit Number 44-206-00388 and Hardee's of Union shall
immediately cease food service operations.
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Hardee's of Union hereby withdraws its appeal of the DHEC staff decision
to revoke
its Food Service Permit 44-206-00388 and requests that the Administrative
Law Judge dismiss the appeal with prejudice.
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The effective date of this Order shall be the date of execution by the
Administrative
Law Judge.
AND IT IS SO ORDERED.
September 28, 2001
John D. Geathers
Administrative Law Judge |
