THIS OPINION HAS NO
PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
South Carolina
Department of Health and Environmental Control, Respondent,
v.
Windy Hill
Orchard and Cider Mill, Appellant.
Appeal From Richland County
Marvin F. Kittrell, Administrative Law Court
Judge
Unpublished Opinion No. 2010-UP-563
Submitted November 4, 2010 Filed
December 23, 2010
AFFIRMED AS MODIFIED
David B. Sample, of Fort Mill, for
Appellant.
Matthew Summers Penn, of Columbia, for
Respondent.
PER CURIAM: Windy Hill Orchard and Cider Mill, Inc. (Windy Hill) appeals from
the Administrative Law Court's (ALC) order that required it to cease all food
preparation, service, and sales, arguing the ALC erred in (1) requiring Windy
Hill to prove it fell within the permanent food stand exception that would
exempt it from the requirement to have a retail food establishment permit; (2)
finding doughnuts constituted a potentially hazardous food, thereby excluding
Windy Hill from the permanent food stand exception; (3) finding the production
of doughnuts at Windy Hill's orchard required more than minimal preparation,
thereby excluding Windy Hill from the permanent food stand exception; (4)
finding the one-time service of meatballs at a festival met the definition of a
retail food establishment and did not fall within the permanent food stand
exception; (5) finding Windy Hill violated Regulation 61-25 for a period of
forty-eight days when there was no substantial evidence in the record to
support such a finding; and (6) finding Windy Hill prepared and sold regulated
foods on twenty-four separate days during 2008, and basing its fine for
contempt on that number of days when there was no substantial evidence in the
record to support the finding. We affirm
as modified.
FACTS
Windy Hill is an
agrotourism business in York County, South Carolina. Windy Hill makes apple
cider, apple butter, and cider doughnuts; provides educational tours of its
apple orchard; and allows customers to pick apples for purchase, observe
cider-making, and visit with farm animals. Windy Hill also operates a roadside
market where it sells its cider, apple butter, and cider doughnuts, in addition
to other items it prepares including popcorn, apple pies, fried apple pies,
candy apples, pumpkin butter, strawberry butter, and drinks. During its annual
Apple Harvest Festival in 2007, Windy Hill also prepared and served meatballs
coated in its apple-butter barbeque sauce. Windy Hill's business is seasonal,
and in 2007, it operated from August to Christmas.
Fred Gusmer,
founder and chief executive officer of Windy Hill, testified he makes the apple
cider doughnuts from a dry mix to which he adds water and apple cider, and
mixes the ingredients in a large mixing bowl. He then pours the mixture into a
doughnut hopper that cuts the doughnuts into the frying oil. After the
doughnuts are cooked, the conveyor drops the doughnuts onto a carousel to
cool. He said about half of the doughnuts are then dipped in cinnamon and sugar.
Gusmer estimated they made about thirty-five dozen doughnuts per hour, six days
a week. To make Windy Hill's apple butter meatballs, Gusmer testified he purchases
pre-made, pre-cooked frozen meatballs. The meatballs are heated in a steam
kettle with Windy Hill's apple-butter barbeque sauce, and transferred to a crock-pot
to keep warm until they are served.
Although Windy
Hill was preparing food at its facility, it did not have a retail food
establishment permit as required by
Regulation 61-25 for "any operation that prepares, packages, serves,
processes, or otherwise provides food for human consumption, either on or off
the premises, regardless of whether there is a charge for the food." 24A
S.C. Code Ann. Regs. 61-25(A)(26) (Supp. 2009). In Fall 2005, Jerlyn Greulich, a South Carolina Department
of Health and Environmental Control (DHEC) restaurant inspector, testified she
stopped at Windy Hill because she smelled food cooking as she was driving past
the business. She asked Gusmer what he was cooking and if she could see where
he was cooking it. Gusmer declined her request, and she left without seeing
the facility.
After speaking
with her supervisor about Windy Hill, Greulich returned to the business on
November 8, 2006 with her senior inspector. They asked to speak with the
owner, but an employee told them he was busy, so they left a card with a
message for Gusmer to call DHEC. Greulich again visited Windy Hill on May 17,
2007 to attend a meeting with Gusmer, an employee from the Department of
Agriculture (DOA), and Ken Beaty, Greulich's supervisor. During the visit,
Greulich was able to inspect the facility and left Gusmer with a list of things
he needed to do to get his business permitted as a retail food establishment.
When Gruelich received
complaints that Windy Hill was making and selling food, she contacted Beaty and
Bill Phillips, the county supervisor for DHEC. Phillips told her he spoke to
someone at Windy Hill who informed him all its food was prepackaged, so a
permit was not required. Greulich contacted Beaty again on October 20, 2007,
after receiving more complaints about Windy Hill, and Beaty observed employees
cooking doughnuts when he visited the business. As a result, Beaty asked
Greulich to write Windy Hill an official notice to stop cooking without a
permit. Specifically, DHEC asserted Windy Hill was required to have a permit
for making its cider doughnuts and meatballs. Greulich testified Gusmer and
his wife refused to take or sign the notice.
Greulich returned
to Windy Hill with Beaty on October 25, 2007, in response to another
complaint. They again observed Windy Hill cooking doughnuts in violation of
the first notice. As a result, Greulich wrote Gusmer a second official notice
to stop making doughnuts without a permit, and the Gusmers again refused to
sign the notice. The next day, Gusmer requested a meeting with DHEC to discuss
the notices. Greulich testified Gusmer said "he hoped that [DHEC] could
reduce the damages that [it] . . . were [sic] inflicting against his business
which had been in operation since 1991," and Gusmer "tried to
persuade us that he did not need a permit to sell his foods." Beaty
testified he twice attempted to give Gusmer a letter explaining the requirement
to obtain a permit, but Gusmer refused to take it. Greulich again observed
Windy Hill making doughnuts on October 29 and 31, 2007. When Greulich and
Beaty visited Windy Hill during its Apple Harvest Festival on October 20, 2007,
they also observed Windy Hill serving meatballs.
Gusmer claimed
Windy Hill qualified as a permanent food stand; therefore, it was not required
to obtain a permit. Tamara Gordon, DHEC Chief Survey Officer,[1] testified a facility must meet two
requirements to qualify as a permanent food stand: (1) minimal preparation of
food, and (2) food that is non-potentially hazardous. She said popcorn,
candied apples, french fries, and cotton candy are all minimal preparation food
items. She explained:
There is no preparation to pop [a] corn kernel. You put it in
grease and you fry it and you serve it immediately. You take [a] candied
apple, you mix sugar and water, again, sugar and water is liking [sic] to
grease, and is not potentially hazardous. You take an apple, put a stick in
it, add coloring over here, no big deal, dip it in, put it aside. . . . The
French fries, is [sic] from a bag frozen, you have [a] vat of grease, you take
it and you dump it in the grease and you fry it, and you bring it up and you
serve it immediately. The cotton candy is the same way. You pour sugar into a
spinning machine and you stick a single-service item in there and you end up
with [a] fluff ball of spun sugar.
When asked about
Regulation 61-25, subpart 26(C)(12), Beaty explained DHEC permits facilities
that make pretzels, but it does not regulate facilities that just warm the
pretzels, like a stand at a ballgame. Greulich testified "minimal
preparation" involved one bowl and one utensil. Gordon stated anything
that requires cutting, mixing, or extensive equipment would not qualify as a
minimal preparation food. As an example, she explained melting chocolate for a
mold, and scooping ice cream do not qualify as minimal preparation foods and
require a permit. Gordon and Beaty both testified the dry doughnut mix used by
Gusmer contained egg and dairy products that when rehydrated would become a
potentially hazardous food. Gordon stated DHEC has a policy that dry milk
batter is a potentially hazardous product that must be temperature controlled.
Gordon concluded Windy Hill's doughnuts do not qualify as a minimal-preparation
food, and the doughnut mix is a potentially hazardous product; therefore, Windy
Hill does not qualify as a permanent food stand and is required to have a
permit. Gordon also mentioned Krispy Kreme Doughnuts has a DHEC permit.
DHEC issued an
administrative order on November 2, 2007, requiring Windy Hill to cease food
preparation and service, or obtain a permit to operate as a retail food
establishment pursuant to South Carolina Regulation 61-25. The order also
imposed a civil penalty of $5,000 and set penalties for future violations of
the order at $1,000 per day. DHEC eventually determined Windy Hill owed $56,000
in civil penalties.
Gusmer wrote a
letter to DHEC requesting a final review, which DHEC denied. Windy Hill filed
a request for a contested case hearing before the ALC, challenging DHEC's
November 2, 2007 order. After numerous continuances, a hearing was held on
November 24, 2008. The ALC filed its order on January 13, 2009, finding
"Windy Hill must cease all food service operations until it obtains a Reg.
61-25 permit from [DHEC], must pay a civil penalty to [DHEC] in the amount of
[$24,000], and must pay a sanction to the [ALC] in the amount of
[$12,000]."[2]
This appeal followed.
STANDARD OF REVIEW
The ALC presides over all
hearings of contested DHEC permitting cases and, in such cases, serves as the
fact-finder and is not restricted by the findings of the administrative
agency. Terry v. S.C. Dep't of Health & Envtl. Control, 377 S.C.
569, 573, 660 S.E.2d 291, 293 (Ct. App. 2008); Marlboro Park Hosp. v. S.C.
Dep't of Health & Envtl. Control, 358 S.C. 573, 577, 595 S.E.2d 851,
853 (Ct. App. 2004); see S.C. Code Ann. § 1-23-600(A) (Supp. 2009).
This court's scope of review is set forth in section 1-23-610(B) of the South
Carolina Code (Supp. 2009). That section provides:
The
review of the administrative law judge's order must be confined to the record.
The court may not substitute its judgment for the judgment of the
administrative law judge as to the weight of the evidence on questions of fact.
The court of appeals may affirm the decision or remand the case for further
proceedings; or it may reverse or modify the decision if the substantive rights
of the petitioner have been prejudiced because the finding, conclusion, or
decision is:
(a) in violation of constitutional or
statutory provisions;
(b) in excess of the statutory
authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the
reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
Id.; see S.C. Coastal Conservation League v.
S.C. Dep't of Health & Envtl. Control, 380 S.C. 349, 360, 669 S.E.2d
899, 904-05 (Ct. App. 2008) (finding this court's review of an ALC judge's
order to be governed by S.C. Code Ann. § 1-23-610(C) (Supp. 2007)),rev'd on other grounds, Op. No. 26892 (S.C. Sup. Ct. filed Nov. 15, 2010)
(Shearouse Adv. Sh. No. 46 at 12); Reliance Ins. Co. v. Smith, 327 S.C.
528, 535 n.6, 489 S.E.2d 674, 678 n.6 (Ct. App. 1997) (noting the standards of
review established under S.C. Code Ann. §§ 1-23-380(A)(6) and 1-23-610(D)
(Supp. 1996) are essentially identical, but declining to decide which section
would apply to the case due to the similarities between the two sections).[3]
"Under our standard of
review, we may not substitute our judgment for that of the [ALC] as to the
weight of the evidence on questions of fact unless the [ALC's] findings are
clearly erroneous in view of the reliable, probative and substantial evidence
in the whole record." Comm'rs of Pub. Works v. S.C. Dep't of Health
& Envtl. Control, 372 S.C. 351, 358, 641 S.E.2d 763, 766-67 (Ct. App. 2007).
Substantial evidence is not a mere scintilla of evidence, but evidence which,
considering the record as a whole, would allow reasonable minds to reach the
conclusion the ALC reached. Leventis v. S.C. Dep't of Health & Envtl.
Control, 340 S.C. 118, 130, 530 S.E.2d 643, 650 (Ct. App. 2000). "This
Court, although not bound by the decision, will ordinarily defer to the opinion
of a state agency as to the interpretation of a statute it is charged with the
duty of enforcing." S.C. Coastal Conservation League, 380 S.C. at
362, 669 S.E.2d at 906. "The construction of a statute by the agency
charged with its administration will be accorded the most respectful
consideration and will not be overruled absent compelling reasons." Brown
v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 515, 560 S.E.2d
410, 414 (2002) (quoting Dunton v. S.C. Bd. of Exam'rs in Optometry, 291
S.C. 221, 223, 353 S.E.2d 132, 133 (1987)).
LAW/ANALYSIS
I. Permanent Food
Stand Exception
Windy Hill argues the ALC erred in requiring
Windy Hill to prove it fell within the permanent food stand exception exempting
it from the requirement of a retail food establishment permit. We disagree.
Section 44-1-140(2) of the South Carolina Code grants
DHEC the authority to make, adopt, promulgate, and enforce reasonable rules and
regulations concerning the sanitation of restaurants, cafes, hot dog and
hamburger stands, and "all other places or establishments providing eating
or drinking facilities." S.C. Code Ann. § 44-1-140(2) (2002). Pursuant
to its authority granted by the statute, DHEC adopted Regulation 61-25. 24A
S.C. Code Ann. Regs. 61-25 (Supp. 2009). Regulation 61-25 applies to retail
food establishments and defines a retail food establishment in Chapter I as:
"any operation that prepares, packages, serves, processes, or otherwise
provides food for human consumption, either on or off the premises, regardless
of whether there is a charge for the food." 24A S.C. Code Ann. Regs.
61-25(A)(26) (Supp. 2009). Chapter XIV(A) of Regulation 61-25 provides that
"[n]o person shall operate a retail food establishment who does not have a
permit issued by the health authority." However, Regulation
61-25(A)(26)(c) lists eighteen establishments that do not qualify as a retail
food establishment. Windy Hill claimed it qualified under the "permanent
food stand exception." Subsection (c)(12) states permanent food stands
"serve nonpotentially hazardous food which requires minimal or no
preparation including pretzels, popcorn, sno-cones, cotton candy, candy apples,
french fries, soft drinks, draft beer, and similar food." 24A S.C. Code
Ann. Regs. 61-25(A)(26)(c)(12) (Supp. 2009).
During the administrative hearing, Judge Kittrell
stated, "in an enforcement action, the burden is on [DHEC] and they have
to establish a prima facie case and then the burden can shift over to [Windy
Hill]. That's the way these matters have been determined and it's been
outlined by decisional law in this State that way." Gordon testified the
burden was on Windy Hill to prove to DHEC that its food qualifies under the exception.
Windy Hill correctly asserts that under Administrative Law Court Rule 29(B),
DHEC bore the burden of proof to establish Windy Hill met the definition of a
retail food establishment because it sought a civil penalty against Windy
Hill. Rule 29(B), SCALC. However, Windy Hill also asserts DHEC had to prove Windy Hill did not fall within
the permanent food stand exception, which would exempt it from the requirement
of a retail food establishment permit.
Windy Hill relies on State v. Solomon, 245 S.C.
550, 141 S.E.2d 818 (1965), in support of its assertion that the party relying
on a statute is required to prove the opposing party's conduct does not fall
within the exception. In Solomon, the court determined that if the
exception does not form a part of the description of the offense, then it is a
defense. Id. at 564, 141 S.E.2d at 826. Therefore, the court
held that after the State had made its prima face case that Solomon had violated
the statute, the burden of proof shifted to Solomon to prove his work came
within the exceptions of the statute. Id. at 575-76, 141 S.E.2d at
832 (mentioning Charleston Oil Co. v. Poulnot, 143 S.C. 283, 296, 141
S.E. 454, 458 (1928) (discussing that a seller charged with the violation of
the statute bears the burden of showing the necessity of selling those articles
on Sunday)); see also State v. Attardo, 263 S.C. 546, 552, 211
S.E.2d 868, 871 (1975) ("It is also well established in case law that when
the State has made out a prima facie case under a statute and the defendant
claims to fall within an 'exception' or 'proviso' in the statute the burden is
on the defendant to establish such a defense."); cf. TNS Mills,
Inc. v. S.C. Dep't of Revenue, 331 S.C. 611, 618, 503 S.E.2d 471, 475
(1998) ("The burden is on claimants to prove their rights to an exemption
by bringing themselves clearly within the conditions imposed by the
statute."). Although Solomon is a criminal case, we find its
holding is also applicable in this case to determine the burdens of proof under Regulation 61-25.
Therefore, DHEC met its burden of proof by
establishing Windy Hill met the definition of a retail food establishment
because it prepared, packaged, served, processed, or otherwise provided food
without a permit. It was then Windy Hill's burden to rebut DHEC's
determination that Windy Hill was a retail food establishment by establishing
it qualifies under the permanent food stand exception. In response to Windy
Hill's assertion, DHEC further presented evidence that Windy Hill did not fall
within the exception because it prepared potentially hazardous food that
required more than minimal preparation. Thus, we find the ALC did not err in
finding the burden was on DHEC to establish a prima facie case, and the burden
shifted to Windy Hill to prove it
fell within the permanent food stand exception.
II. Potentially
Hazardous Food
Windy Hill argues the ALC
erred in finding its
doughnuts constituted a potentially hazardous food thereby excluding Windy Hill
from the permanent food stand exception.
We disagree.
Windy Hill asserts DHEC
failed to produce any credible evidence that its doughnuts were a potentially
hazardous food. Windy Hill also asserts determining doughnuts are a
potentially hazardous food requires the court to go beyond the plain meaning of
the regulation, and "[u]nder the 'plain meaning rule,' it is not the
court's place to change the meaning of a clear and unambiguous statute." S.C.
Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control,
380 S.C. 349, 367, 669 S.E.2d 899, 908 (Ct. App. 2008), rev'd on other
grounds, Op. No. 26892 (S.C. Sup. Ct. filed Nov. 15, 2010) (Shearouse Adv.
Sh. No. 46 at 12).
This court will not substitute
its judgment for that of the ALC as to the weight of the evidence on questions
of fact unless the ALCs findings are clearly erroneous in view of the
reliable, probative, and substantial evidence in the record. Comm'rs of
Pub. Works v. S.C. Dep't of Health & Envtl. Control, 372 S.C. 351, 358,
641 S.E.2d 763, 766-67 (Ct. App. 2007). Further,
this court accords the most respectful consideration of the construction of a
statute by the agency charged with its administration and will not overrule it
absent compelling reasons. Brown v. S.C. Dep't of Health & Envtl.
Control, 348 S.C. 507, 515, 560 S.E.2d 410, 414 (2002) (quoting Dunton
v. S.C. Bd. of Exam'rs in Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133
(1987)).
Gordon, whose job
involves writing policies and interpreting regulations, and Beaty both
testified the dry doughnut mix used by Windy Hill contained egg and dairy
products that would become a potentially hazardous food when rehydrated. Gordon
stated DHEC has a policy that dry milk batters are considered a potentially hazardous
product that has to be temperature controlled. Therefore, we find the evidence supports the ALC's finding that Windy Hill's doughnuts
constitute a potentially hazardous food, which excludes Windy Hill from the
permanent food stand exception.
III. Minimal
Preparation
Windy Hill argues the ALC erred in finding the production of doughnuts at
Windy Hill's orchard required more than minimal preparation thereby excluding
Windy Hill from the permanent food stand exception. We disagree.
Windy Hill asserts DHEC failed to produce any evidence
that its doughnuts did not meet the minimal or no preparation requirement of
the permanent food stand exception. Windy Hill argues again that determining whether a
food meets the minimal-preparation prong of the permanent food stand exception
requires the court to go beyond the plain meaning of the regulation. It claims
the plain and obvious interpretation of the regulation is that whatever goes
into making a pretzel, candy apple, french fries, and the other listed foods,
constitutes minimal or no preparation, and there is no reason for the court to
read into the regulation an additional element that only prepackaged frozen
food fits into the exception for a permanent food stand.
Again, this court will not substitute our judgment for
that of the ALC as to the weight of the evidence on questions of fact unless
the ALCs findings are clearly erroneous in view of the reliable, probative,
and substantial evidence in the record. Comm'rs of Pub. Works, 372 S.C.
at 358, 641 S.E.2d at 766-67. Also, this
court accords the most respectful consideration of the construction of a
statute by the agency charged with its administration and will not overrule it
absent compelling reasons. Brown, 348 S.C. at 515, 560 S.E.2d at 414.
Gordon testified
popcorn, candied apples, french fries, and cotton candy are all minimal
preparation food items because they do not involve any, or very limited
preparation. She stated anything that requires cutting, mixing, or extensive
equipment would not qualify as a minimal-preparation food. For example, she
explained melting chocolate for a mold, and scooping ice cream do not qualify
as minimal preparation foods and require a permit. Greulich testified minimal
preparation uses one bowl and one utensil. Beaty explained that DHEC permits
facilities that make pretzels, but it does not regulate facilities that just
warm the pretzels, like a stand at a ballgame. Gordon mentioned Krispy Kreme Doughnuts
has a DHEC permit.
Gusmer testified
he made the apple cider doughnuts from a dry mix to which he added water and
apple cider, and mixed the ingredients in a large mixing bowl. He then poured
the mixture into a doughnut hopper, which cut the doughnuts into the frying
oil, and the conveyor dropped the doughnuts onto a carousel to cool after the
doughnuts were cooked. Additionally, he dipped half of the doughnuts in
cinnamon and sugar. Thus, we find the evidence
supports the ALC's finding
the production of doughnuts at Windy Hill's orchard required more than minimal
preparation, which excluded Windy Hill from the permanent food stand exception.
IV. Retail Food
Establishment
Windy Hill argues the ALC
erred in finding the one-time
service of meatballs at a festival met the definition of a retail food
establishment and did not fall within the permanent food stand exception. We disagree.
Windy Hill asserts it only
served meatballs on one day and that day was prior to DHEC's cease and desist
order. Windy Hill essentially argues the meatballs, which are a regulated
food, are not subject to the regulation because they made them for one day only.
It raises this argument for the first time on appeal; therefore, it is not
preserved for our review. Brown v. S.C. Dep't of Health & Envtl.
Control, 348 S.C. 507, 519, 560 S.E.2d 410, 417 (2002) ("Issues not
raised to and ruled upon by the ALJ are not preserved for appellate
consideration.").
Windy Hill also asserts DHEC
failed to produce any evidence that its meatballs were a potentially hazardous
food or required more than minimal preparation. Gordon testified anything that requires mixing or extensive
equipment would not qualify as a minimal preparation food, and Greulich
testified that minimal preparation involved one bowl and one utensil. As a
result, Windy Hill's meatballs would not qualify as a minimal-preparation food
because Gusmer testified he purchased pre-made, pre-cooked frozen meatballs,
which he heated in a steam kettle with apple-butter barbeque sauce, and
transferred to a crock-pot to keep warm until they were served. Therefore, we
find the evidence supports the ALC's finding the production of meatballs at
Windy Hill's orchard required more than minimal preparation.
V. Forty-Eight Day
Violation
Windy Hill argues the ALC
erred in finding Windy Hill
violated Regulation 61-25 for a period of forty-eight days when there was no
substantial evidence in the record to support such a finding, and the court
improperly shifted the burden to Windy Hill to show it did not serve foods that
allegedly violated the regulation on that number of days. We disagree.
Windy Hill
asserts the ALC improperly shifted the burden to Windy Hill to prove the number
of days it served the foods that violated the regulation by adopting DHEC's
position that the fines accrued daily without further inspections to verify the
violation was continuing, unless it notified DHEC it was no longer in
violation.
On January 7,
2008, DHEC determined Windy Hill had been in operation in 2007 for a total of fifty-six
days, and at a fine of $1,000 per day, DHEC calculated the total penalty was
$56,000. Gusmer testified Windy Hill was open in 2007 from August to December,
Monday through Saturday, with the exception of closing for rain or personal
business. He replied in the negative when asked if it was possible for him to
have been open more than fifty days in 2007. Gusmer also testified some of the
days he sold doughnuts that were made off-site, and he estimated he sold the
pre-made doughnuts for forty-five days.
Judge Kittrell
reduced DHEC's civil penalty from $56,000 to $24,000 because Gusmer testified
Windy Hill was only open six days a week from October 27, 2007 to December 22,
2007. Judge Kittrell determined there were fifty-six days between October 27
to December 22; subtracted the eight Sundays between the dates Windy Hill
opened and closed; and reduced the per-day penalty amount from $1,000 to $500.
Although Judge Kittrell already reduced the penalty by $32,000, Gusmer testified
he sold pre-made doughnuts for forty-five of the forty-eight days Windy Hill
was open in 2007. Thus, the evidence presented is that Windy Hill was only in
violation of the regulation for three days, which would result in a $1,500 fine.
Therefore, we reduce Windy Hill's civil penalty to $1,500.
VI. Fine for Contempt
Windy Hill argues the ALC
erred in finding Windy Hill
prepared and sold regulated foods on twenty-four separate days during 2008 and
basing its fine for contempt on that number of days when there was no
substantial evidence in the record to support this finding. We disagree.
Windy Hill asserts there is
no substantial evidence in the record as to how many days Windy Hill violated
the August 11, 2008 order that lifted the automatic stay of the DHEC order to
cease and desist making food without a permit. Windy Hill maintains only seventeen
days passed from the date Windy Hill opened, August 23, 2008, and September 8,
2008, when Windy Hill notified DHEC it had stopped making the doughnuts.
Further, Gusmer claims that normally Windy Hill is closed on Sundays. Windy
Hill does not dispute it made doughnuts in violation of the order; therefore,
the ALC did not err in finding Windy Hill in contempt of court. However, as
Windy Hill asserts, there were only fourteen days between August 23 and
September 8 that Windy Hill would have been open for business. Therefore, we
find Windy Hill should only be sanctioned for the fourteen days it operated in
violation of the order. Judge Kittrell assessed a $500 per-day sanction for twenty-four
days, for a total of $12,000. Had Judge Kittrell only sanctioned Windy Hill
for fourteen days, the total sanction would be $7,000. Therefore, we reduce Windy Hill's sanction
to $7,000.
CONCLUSION
Accordingly, we
affirm the ALC's order with reductions in
the penalties and sanctions against Windy Hill.
AFFIRMED AS
MODIFIED.
FEW, C.J.,
SHORT and WILLIAMS, JJ., concur.
[1] Gordon testified that in addition to conducting
audits of the regional inspectors, she also assists the Director of DHEC's
Division of Food Protection in writing policies and interpreting regulations
that are implemented statewide.
[2] Judge Kittrell reduced DHEC's civil penalty from
$56,000 to $24,000.
[3] These sections can now be found in S.C. Code Ann. §§
1-23-380(5) and 1-23-610(B) (Supp. 2009).