ORDERS:
DECISION AND ORDER
This is a contested case in which the South Carolina Department of Health and Environmental
Control (Department) made the decision to revoke the food service permit of Casa Linda Mexican
Restaurant. A hearing was held in this case on February 9, 1996 at the Administrative Law Judge
Division. The food service permit of the Casa Linda Mexican Restaurant is revoked.
DISCUSSION
The Casa Linda Mexican Restaurant (Casa Linda) has repeatedly violated the State's sanitary food
preparation and storage standards in 1995. The Department has exercised patience in attempting
to bring the Casa Linda into compliance with the State's food service laws. After citing Casa
Linda two "critical" violations, the Department held a training session to assist Casa Linda
management and staff in correcting the violations. In fact, the Department translated its training
materials into Spanish so the management and staff of Casa Linda would clearly understand the
materials. The Department emphasized that its decision to revoke Casa Linda's food service
permit was its last resort.
Casa Linda acknowledges the past violations, but contends that the violations were a result of the
bad management by a cook who was fired in October of 1995.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their
credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. Casa Linda is a retail restaurant located at 1029 Broad Street in Sumter, South Carolina.
2. The Department 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 the Department.
3. Department personnel made a routine inspection of Casa Linda on April 10, 1995. The
inspection revealed numerous violations of the Department's regulations governing food service
establishments, including five critical violations. Those five critical violations were as follows:
a. There was evidence of the presence of rodents;
b. Pesticides and cleaners were improperly stored;
c. The dish washing machine was not being properly used to sanitize the utensils;
d. Chicken and beef were stored at 60 degrees at 12:30 p.m. The staff was storing chicken
and beef together, which created the potential of cross-contamination.
As a result of these violations, Casa Linda received a rating score of 55 percent and a "C" grade
was posted at the restaurant.
4. A follow-up inspection was conducted as a result of the April 10, 1995, grade "C" posting.
Upon that inspection, the Department found that a large plant had been placed directly in front of
the grade "C" rating so that the rating would not be visible to the members of the public. The
plant had never been placed in that location previously. Thus, the restaurant staff placed the plant
in front of the rating to specifically circumvent the public's awareness of their "C" rating.
5. Department personnel made a routine inspection of Casa Linda on August 10, 1995. That
inspection again revealed numerous violations of the food service regulations, including five
critical violations. The critical violations were as follows:
a. A beef loin had been placed outside of refrigeration the previous night and was 75
degrees at 11:25 a.m.
b. An employee was not properly washing his hands in the food preparation area.
Additionally, an employee was also drinking a beverage in the preparation area.
c. The employees were not sanitizing utensils. In other words, the employees were not
properly operating either the dish washing machine or the three-compartment sink used to
sanitize utensils.
d. Crab meat and beef were found at 70 degrees on the serving line at 11:40 a.m., and
e. The restaurant staff stored cleaners with the utensils on the shelf of the preparation table
and in the dish room. Furthermore, paint was stored with the food products.
As a result of these numerous violations, the resturarnt received a 63 percent rating and a grade
"C" permit.
6. While conducting the August 10, 1995 inspection, the Department personnel placed a "Hold"
order on the beef loin that was allowed to thaw overnight so that beef could be inspected for
contamination. However, in violation of that Order, the restaurant staff removed that meat from
the designated cooler so that it could not be inspected.
7. On August 2, 1995, James Arthur, Jr., District Food Service Supervisor for the Department,
met with the owner of Casa Linda and scheduled a training session for the staff on August 4,
1995. In preparation for that training session, the Department had their training materials
translated into Spanish. When they arrived at Casa Linda as scheduled, however, no one was
present at the restaurant. Afterwards, the session was rescheduled and held on September 12,
1995. The manager of Casa Linda, Ishmael Villegas, was present and insured that the staff
understood both the food service regulations and the nature of the previous infractions.
8. In a letter dated August 22, 1995, the Department informed Mr. Perry and Mr. Villegas that it
is the policy of the Department that after three consecutive routine inspections yielding the same
critical violations, and a rating score of less that 70 percent, the Department will initiate actions to
revoke the permit. The Department further informed Perry and Villegas that if their next
sanitation evaluation resulted in similar violations, the Department would seek to revoke their
permit.
9. Department personnel made a routine inspection of Casa Linda on October 9, 1995. That
inspection again revealed numerous violations including four critical violations. Those violations
were as follows:
a. Chili relleno was found at 67 degrees at 11:46 a.m.
b. Medicine was stored with food and with utensils in the large pantry. Additionally,
cleaning chemicals were stored with bus pan lids.
c. Mouse droppings were found on sheet pans with food and in uncovered taco shells in the
small pantry. The mouse droppings were also found on shelves in the large pantry.
Additionally, roaches were found both in the small pantry and the bar area, and
d. There was no sanitizer at the three compartment sink. Additionally, the blender was
stored inverted in the hand sink and therefore, was not being properly sanitized. As a result
of these numerous violations, the restaurant received a 64 percent rating and a "C" permit
was posted.
10. In each of the routine inspections the Department's Inspection Report revealed critical
violations of Items 3,19 and 39. Furthermore, the rating scores resulting from these inspections
were less than 70 percent.
11. As a result of the routine inspection scores and critical violations on April 10, 1995, August
10, 1995 and October 9, 1995, the Department informed Casa Linda that they were initiating legal
action to revoke their food service permit No. 00173 on November 7, 1995.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law the following:
1. The Administrative Law Judge Division has subject matter jurisdiction in this case. S.C. Code
Ann. §§ 48-1-50, 1-23-600(B) and 1-23-310, et seq. (Rev. 1986 & Supp. 1995); S.C. Code Ann.
Regs. 61-25, Chapter XIV (C)(3) and (E)(6) (Supp. 1995).
2. S.C. Code Ann. § 44-1-140 (1976) provides the authority for the Department to promulgate
regulations relating to the operation of food service establishments.
3. S.C. Code Ann. Regs. 61-25 (Supp. 1995) is the applicable regulation governing the standards
for retail food establishments, including permitting, inspection, and compliance procedures.
4. A valid permit issued by the Department is necessary to operate a food service establishment.
S.C. Code Ann. Regs. 61-25 (Supp. 1995).
5. A food service permit may be revoked when "three consecutive routine inspections have a
rating score of below 70." S.C. Code Ann. Regs. 61-25, Chapter XIV (E)(2) (Supp. 1995).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Food Service Permit No. 00173 of Casa Linda be revoked.
AND IT IS SO ORDERED.
______________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
May 15, 1996
Columbia, South Carolina |
