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 Kazuhiro Sato, Individually, and Kazuhiro Sato d/b/a Sato’s Japanese Steak
& Seafood House (“Petitioner”) located at 1999 Beltline Boulevard, Columbia, South Carolina.
After timely notice to the parties, a hearing was conducted on February 4, 2004 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 suspended indefinitely subject to the
terms set forth herein.
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.Petitioner is a retail food establishment which holds a food service permit (Food
Service Permit No. 40-206-1493) for its business at 1999 Beltline Boulevard, Columbia, 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. 2003).
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. 2003).
3.On August 27, 2003, Yolanda Martin, a DHEC food inspector, conducted a routine
inspection at the Petitioner’s restaurant. Petitioner scored 57 out of 100. This inspection included
five critical violations
and eight repeat violations.
4.On October 23, 2003, Ms. Martin and Wendy Reed, district food supervisor,
conducted the second routine inspection. Petitioner scored 62 our of 100. This routine inspection
included five critical violations and one repeat violation. In the report provided to the restaurant,
Petitioner was notified that if the next routine inspection resulted in a score of less that 70, DHEC
would begin the revocation process. On October 24, 2003, Ms. Reed sent a letter to the restaurant
regarding the revocation process and offering DHEC training upon Petitioner’s request.
5.On December 2, 2003, Ms. Martin and Tammy Gordon, Survey Officer for the
Division of Food Protection, conducted the third routine inspection. The inspection resulted in a
score of 68. This routine inspection included three critical violations. Ms. Gordon discussed the
permit revocation process with the Petitioner. The Petitioner corrected the violations found in this
inspection.
6.On December 4, 2003, Beverly Jones hand-delivered a letter of revocation, and an
employee of Petitioner signed the letter acknowledging receipt.
7.The Petitioner has a history of failing to maintain compliance with Regulation 61-25
dating back to 1999, when the Petitioner received consecutive routine inspection scores of 60 and
58.
8.Petitioner does not refute the violations cited by DHEC in the inspection reports or
that Petitioner has scored less than 70 in three consecutive routine inspections.
9.Mr. Sato is a Japanese citizen who has been in the United States on a green card/work
visa for almost 20 years. Although able to speak the English language, he has great difficulty
expressing himself. He is fairly conversational, but when faced with specific technical or legal
explanations, his ability to communicate and understand breaks down. His manager, Steve
Phatsavong, spoke and comprehended oral English as he testified in the proceeding, but has difficulty
reading English.
10.In follow-up inspections during the period August 29, 2003 through December 5,
2003, Petitioner had scores of 91, 95, 85, 97, 98, and 100. Petitioner has shown the ability and
willingness to correct violations which have been cited and explained by DHEC.
11.Petitioner is willing to participate in training and have his employees participate in
training.
12.DHEC is willing to provide training to Petitioner.
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. 2003) and § 44-1-50 (2003); 24A S.C. Code Ann. Regs. 61-25, Chapter XIV (C)(3) and
(E)(6) (Supp. 2003).
2.S.C. Code Ann. § 44-1-140(2) (2003) 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. 2003) 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.
2003).
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.For the consecutive routine inspections dated August 27, 2003, October 23, 2003, and
December 2, 2003, Petitioner scored a 57, 62, and 68, respectively.
Although the violations, as
summarized and outlined in the Respondent’s Exhibits Nos. 2, 5, and 9, are too numerous to discuss
in detail, they permeate virtually every aspect of the Petitioner’s operation. Violations included food
stored at improper and dangerous temperatures, food improperly thawed, equipment and utensils
improperly sanitized, cross-contamination of food not prevented, toxic chemicals improperly stored,
and facilities improperly maintained.
7.The elements of 24A S.C. Code Ann. Regs. 61-25, Chapter XIV (E)(2) (Supp. 2003)
have been met in this case. Although it was reasonable for DHEC to proceed with the revocation
process, a suspension of the Petitioner’s permit for an indefinite period will protect the public health
and allow the Petitioner an opportunity to participate and have his employees participate in training
in order to attempt to avoid revocation.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that Food Service Permit No. 40-206-1493 for Kazuhiro Sato,
Individually, and Kazuhiro Sato d/b/a Sato’s Japanese Steak & Seafood House, located at 1999
Beltline Boulevard, Columbia, South Carolina, be suspended indefinitely with the suspension to
commence five (5) days following the date of this Order. Petitioner must close for business and cease
and desist all retail food operations during the suspension.
IT IS FURTHER ORDERED that during the suspension period Petitioner and all his
employees attend training sessions conducted by DHEC or such other entity as is approved by
DHEC.
IT IS FURTHER ORDERED that the Petitioner must create and submit to DHEC a plan
for a continuous employee training and supervision program to ensure sanitary and healthy food
handling, preparation, and storage practices.
IT IS FURTHER ORDERED that the suspension shall continue until Petitioner has
demonstrated to DHEC’s satisfaction that it has an understanding of the Regulations and the proper
procedures for food handling, storage, and preparation and is able and willing to follow the
Regulations and procedures. If in DHEC’s discretion it deems it necessary to conduct an inspection
of the Petitioner’s facilities prior to lifting the suspension, then it is authorized to do so. The results
of the inspection must be to DHEC’s satisfaction prior to DHEC’s lifting of the suspension.
IT IS FURTHER ORDERED that for a period of one year after the suspension period is
lifted by DHEC, if the Petitioner fails to score a minimum of 70 on any routine inspection its permit
shall be suspended for 15 days or until the violations cited are corrected, whichever is later. If
Petitioner fails to score a minium of 70 on any routine inspection for a second time within a period
of one year after the suspension period is lifted by DHEC, the permit shall be revoked.
AND IT IS SO ORDERED.
_________________________________
C. DUKES SCOTT
Administrative Law Judge
February 5, 2004
Columbia, South Carolina |
