ORDERS:
ORDER AND DECISION
This matter comes before me upon petition for hearing following the proposed staff decision to
revoke the food service permit of Red Pepper Seafood Restaurant (hereinafter referred to as "Red
Pepper"), in Columbia, South Carolina, by the South Carolina Department of Health and
Environmental Control (hereinafter referred to as "DHEC"). A contested case hearing was held
on October 5, 1995. The food service permit of Red Pepper is hereby temporarily suspended for
fifteen (15) days, and Red Pepper is ordered to undergo further DHEC training and to create,
institute, and submit to DHEC a sanitary food preparation and storage plan.
DISCUSSION
Red Pepper has repeatedly violated sanitary food preparation and storage standards since opening
in 1994. DHEC has exhibited patience and flexibility in dealing with Red Pepper, providing
training sessions and attempting to assist Red Pepper management in correcting violations.
DHEC believes that it has given Red Pepper every benefit of the doubt and seeks revocation of
Red Pepper's food service permit now as a last resort.
Red Pepper acknowledges the past violations, but offers evidence in mitigation and seeks to
institute a kitchen plan crafted by a professional restaurant consultant to prevent future violations.
Although several of the past violations were critical violations, none of the past violations cited
against Red Pepper's permit necessitated immediate permit suspension and closure of the
establishment because of an imminent hazard of public health. Each of the violations was
correctable, and corrected. The primary reason continuous compliance has not been maintained
is because of language and communication problems. Three different languages are spoken by
Red Pepper personnel: English, Chinese, and Spanish. Hung Ho, the manager, speaks Chinese
fluently, speaks only minimal English, and no Spanish. Several kitchen workers speak only one
language. The chef, Ben Young, speaks all three languages. Red Pepper has retained Stig
Jorgensen, a professional restaurant consultant and former chef and owner of several fine
restaurants, to create and help institute a plan for the restaurant to assure that proper kitchen
procedures are followed in food preparation and storage.
But for the language difficulties and the hiring of Mr. Jorgensen, revocation would be mandated.
Because of those factors, serious but less drastic measures are ordered. Corrective and preventive
measures can be implemented to address and protect public health interests. Red Pepper should
not be allowed, however, to escape penalty for recurring violations. Accordingly, a fifteen (15)
day suspension of Red Pepper's food service permit is ordered. Within the fifteen- day suspension
period, DHEC is ordered to provide additional training regarding compliance with DHEC food
service regulations. Also during the suspension period, Red Pepper, with the assistance of Stig
Jorgensen, must create, implement, and submit to DHEC, a kitchen plan for sanitary food
preparation and storage procedures. Should the plan not be completed within fifteen days, the
suspension shall continue indefinitely until it is completed and submitted to DHEC. Upon
submission of the plan to DHEC, its terms and procedures shall be enforced as a term of the food
service permit. Failure to adhere to the plan shall be deemed a violation of the food service
regulations and subject Red Pepper to revocation proceedings.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Red Pepper, located at 900 Senate Street, Columbia, South Carolina, is a retail restaurant
principally owned, managed, and operated by Hung Ho, having begun operation and service on or
about August 11, 1994.
(2) Red Pepper was issued a food service permit, Permit Number 3482, by DHEC on August 11,
1994, and given an "A" rating with a 93% score on the DHEC initial inspection.
(3) DHEC conducts periodic unannounced inspections of retail food service establishments to
evaluate compliance with health and sanitation standards. Points are uniformly deducted for
itemized violations. Violations for which four (4) or five (5) points are deducted are deemed
"critical." If corrective action is necessary by the licensee, a follow-up inspection may be
performed by DHEC.
(4) DHEC personnel made a routine inspection of Red Pepper on September 6, 1994. Red
Pepper received an inspection score of 71%, was given a "C" rating, and was cited for several
violations, including three (3) critical violations.
(5) DHEC personnel made a follow-up inspection of Red Pepper on September 9, 1994, to
determine whether appropriate corrective action had been taken in response to the violations cited
during the routine inspection. Red Pepper received an inspection score of 99% and was given an
"A" rating.
(6) DHEC personnel made a routine inspection of Red Pepper on November 3, 1994. Red
Pepper received an inspection score of 43%, and the permit was temporarily suspended upon
being cited for multiple violations, including eight (8) critical violations.
(7) DHEC personnel made a follow-up inspection of Red Pepper on November 7, 1994, to
determine whether appropriate corrective action had been taken in response to the violations cited
during the routine inspection. Red Pepper received an inspection score of 92% and was given an
"A" rating.
(8) DHEC personnel made a routine inspection of Red Pepper on January 17, 1995. Red Pepper
received an inspection score of 58%, was given a "C" rating, and was cited for multiple
violations, including five (5) critical violations, some of which were repeat violations.
(9) DHEC personnel made a follow-up inspection of Red Pepper on January 20, 1995, to
determine whether appropriate corrective action had been taken in response to the violations cited
during the routine inspection. Red Pepper received an inspection score of 96% and was given a
"A" rating.
(10) By letter dated February 9, 1995, Mr. Hung Ho was given notice by DHEC that a third
consecutive routine inspection resulting in a score below 70%, with repeat critical violations cited
would result in the initiation of revocation proceedings by DHEC.
(11) DHEC personnel made a routine inspection of Red Pepper on March 20, 1995. Red Pepper
received an inspection score of 58%, was given a "C" rating, and was cited for multiple
violations, including five (5) critical violations, some of which were repeat violations.
(12) DHEC personnel made a follow-up inspection of Red Pepper on March 23, 1995, to
determine whether appropriate corrective action had been taken in response to the violations cited
during the routine inspection. Red Pepper received an inspection score of 92% and was given an
"A" rating.
(13) By letter to Mr. Hung Ho from DHEC dated March 31, 1995, DHEC informed
Mr. Ho that the Department was halting revocation action in lieu of presenting two (2) training
sessions at the restaurant to discuss sanitation and operational matters within the establishment.
(14) A training session was conducted by DHEC personnel at Red Pepper on April 3, 1995, with
twelve (12) Red Pepper employees participating.
(15) A walk-through inspection and training session was conducted at Red Pepper by DHEC
personnel on April 17, 1995, and past violations were summarized.
(16) DHEC personnel made a routine inspection of Red Pepper on June 7, 1995. Red Pepper
received an inspection score of 53%, was given a "C" rating, and was cited for multiple
violations, including five (5) critical violations, some of which were repeat violations.
(17) DHEC personnel made a follow-up inspection of Red Pepper on June 9, 1995, to determine
whether appropriate corrective action had been taken in response to the violations cited during the
routine inspection. Red Pepper received an inspection score of 95% and was given an "A"
rating.
(18) By letter dated July 3, 1995, Mr. Hung Ho was given notice by DHEC that because Red
Pepper had four consecutive routine inspections resulting in a score below 70%, with repeat
critical violations cited, DHEC was initiating revocation proceedings. A summary of the past
violations was included with the notice letter (Respondent's Exhibit #20).
(19) The critical violations cited against Red Pepper are as summarized in Respondent's Exhibit
#20, and are incorporated herein by reference.
(20) DHEC filed an Agency Transmittal Form with the Administrative Law Judge Division, dated
July 18, 1995, for the adjudication of this contested case controversy.
(21) DHEC personnel made a routine inspection of Red Pepper on August 8, 1995. Red Pepper
received an inspection score of 85%, was given a "B" rating, and was cited for multiple violations,
including one (1) critical violation.
(22) DHEC personnel made a follow-up inspection of Red Pepper on August 11, 1995, to
determine whether appropriate corrective action had been taken in response to the violations cited
during the routine inspection. Red Pepper received an inspection score of 95% and was given an
"A" rating.
(23) DHEC personnel made another follow-up inspection of Red Pepper on August 14, 1995.
Red Pepper received an inspection score of 100% and was given an "A" rating.
(24) None of the past violations cited by DHEC were considered by DHEC to constitute an
imminent public health hazard.
(25) Mr. Hung Ho speaks fluent Chinese, but minimal English. Many of the employees speak
only Chinese or Spanish. Red Pepper employs approximately twenty-six (26) full and part time
employees.
(26) Red Pepper has hired restaurant consultant Stig Jorgensen to assist in identifying problems
and establishing a multilingual program of continuous training and daily supervision of kitchen
activities to insure proper sanitary procedures for food preparation and storage. At the hearing,
Mr. Jorgensen stated that thirty days were needed to fully implement his program.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
(1) The Administrative Law Judge Division has subject matter jurisdiction in this action. S.C.
Code Ann. §§ 48-1-50, 1-23-600(B), and 1-23-310, et seq. (1986 & Supp. 1994); S.C. Code
Ann. Regs. 61-25, Chapter XIV (C)(3) and (E)(6) (as amended June 23, 1995).
(2) S.C. Code Ann. § 44-1-140 (1976) 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. 1994 & as amended June 23, 1995) 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 suspended or revoked for repeated violations of the DHEC
health and sanitation standards contained in Regs. 61-25. 24A S.C. Code Ann. Regs.
61-25, Chapter XIV (Supp. 1994 & as amended June 23, 1995).
(6) An administrative law judge has the authority to issue such remedial writs as are necessary to
give effect to its jurisdiction. S.C. Code Ann. § 1-23-630 (Supp. 1994).
ORDER
IT IS THEREFORE ORDERED that the food service permit of Red Pepper be suspended for
fifteen (15) days, with the suspension to commence ten (10) days following the date of this Order.
Red Pepper must close for business and cease and desist all retail operations during the
suspension.
IT IS FURTHER ORDERED that during the suspension period, DHEC shall conduct further
training sessions to be attended by Mr. Hung Ho, Mr. Stig Jorgensen, and all Red Pepper
employees, with appropriate language interpreters.
IT IS FURTHER ORDERED that Red Pepper, with the assistance of consultant
Stig Jorgensen, create and submit to DHEC a plan for a continuous employee training and
supervision program of procedures to ensure sanitary and healthy food preparation and storage
practices. The plan must specifically address corrective and preventive measures involving past
violations.
IT IS FURTHER ORDERED that the training and supervision program must be submitted and
implemented prior to the end of the suspension period. Should the plan not be completed and
submitted within the fifteen-day suspension period, Red Pepper's food service permit is revoked.
Upon submission of the plan to DHEC, its terms and procedures shall be enforced as a term of the
food service permit. Failure to adhere to the plan shall be deemed a violation of the food service
regulations and subject Red Pepper to revocation proceedings.
___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
November 29, 1995
Columbia, South Carolina |
