Article II — PUBLIC HEALTH PERMIT

No person shall sell, offer for sale, barter, trade or give away any food or beverage and no person shall permit the same to be done, from any establishment unless such establishment has a valid public health permit, which permit has not been revoked or suspended.

The permit required by this chapter shall be applied for and issued as prescribed in Chapter 8.16. The annual fee for the permit shall be as prescribed in Chapter 8.16.

Every applicant for a permit or license required by this chapter shall, prior to obtaining a building permit, opening a new establishment, or upon remodeling of an old establishment, submit to the Health Officer a plan of the proposed establishment detailing all equipment, materials, and facilities necessary to comply with the Uniform Retail Food Facilities Law, and/or all applicable City ordinances or regulations, accompanied by a fee as set forth by resolution to cover the cost of the review. The Health Officer shall review the plans and specifications and shall determine whether they are in accordance with the requirements of law. In the event that the plans and specifications do not comply with the applicable provisions of law, amended plans and specifications may be submitted to the Health Officer for re-review and approval, and the fee for such re-review, as set forth by resolution, payable to the Health Officer in advance.

A person aggrieved by the denial to him of a permit may appeal from such denial to the County Board of Supervisors in the manner set forth in Section 8.04.190.

A permit shall be granted only on the express condition that it is subject to revocation or suspension upon a showing satisfactory to the Health Officer of the violation by the permittee, his employee, servant or agent, or any other person acting with his consent or under his authority, of any provision of this chapter, the California Restaurant Act, or rule or regulation of the State Board of Health.

A separate permit shall be required for each place of business, concession, or vehicle used by permittee.

(a)

The Health Officer, by regulation, may adopt a score card for the grading of establishment undergoing inspection. No permit shall be issued to any establishment undergoing inspection. No permit shall be issued to any establishment scoring less than 80 percent on the score card. Each establishment shall maintain standards of sanitation and health sufficient to score 80 percent on the score card at all times. If upon inspection any establishment fails to attain a score of 80 percent, due written notice shall be served on the applicant for the permit. The notice shall list the deficiencies and state that such deficiencies must be corrected within 30 days, at which time a reinspection will be made. An establishment failing to comply with the written notice, or failing to attain a score of 80 percent on the reinspection, shall immediately close and remain closed until a score of at least 80 percent is achieved on a reinspection by the department.

(b)

The Health Officer shall issue an alphabetical grade card to each restaurant inspected, which grade card shall be displayed at all times while the restaurant is open to the public. Restaurants scoring 90 percent or more on the score card shall receive an "A" score card; those scoring below 80 percent shall receive a "C" score card.

Every health permit and/or alphabetical grade card issued shall be kept posted in a conspicuous place in the establishment for which the permit is issued. The Health Officer shall prescribe the location in or on the establishment where such permit shall be kept posted. Alphabetical grade cards shall be posted in the front window of the establishment, so as to be clearly visible to patrons entering the establishment, or in a display case mounted on the outside front wall of the establishment within five feet of the front door, or in some other location clearly visible to patrons entering the establishment which has been approved by the Health Officer. The alphabetical grade card shall be protected from damage by weather conditions and shall not be defaced, marred, or camouflaged or hidden so as to prevent the general public from observing it.

(a)

All farmers or ranchers may dispose of fruits, vegetables and farm produce actually produced on their ranches, farms or property. A permit will be issued therefore without charge; provided, that each and every provision of this Code is complied with, that the sale or distribution of such produce or food is not made or done within the right-of-way of any public street or highway in the City, and that the produce is sold from the property on which it is grown.

(b)

Such fruits, vegetables or farm produce may be displayed on and sold from an open stand located on the property on which they are grown, provided such open stand is located on the property on which such fruits, vegetables and farm produce are grown may be maintained as a part of an establishment for which a permit has been issued pursuant to Section 8.04.070 or as a separate stand for which a permit has been issued pursuant to this section. Cider may be displayed and sold at such open stand provided it is produced on the property on which such stand is located.

In the isolated or rural districts where running water, electricity or other modern conveniences are not available, a special permit may be issued if in the opinion of the Health Officer such is advisable and is consistent with the preservation of the public health and safety. All such special permits shall be revocable for any cause which affects the public health and safety.

(a)

The Director of Public Health shall order that a hearing be held, with himself as Hearing Officer, to determine whether or not the health permit of an establishment should be suspended or revoked whenever it appears to him, by reason of either citizen complaint or Department of Health Services investigation, that the holder of such permit or his employee, servant or agent, or any person acting with his consent or under his authority, has or may have violated any provision of this chapter or any relevant requirement established or provided by law.

(b)

Any hearing pursuant to this section and any order of suspension or revocation resulting therefrom is supplemental to and shall not bar or foreclose subsequent proceedings against such person initiated pursuant to Section 1.12.010.

Upon the determination that a hearing be held pursuant to Section 8.04.160, the Health Officer shall provide notice substantially as follows:

NOTICE OF HEARING

To: (name and address of permittee)

Notice is hereby given that on _______ the Director of Public health of San Diego County ordered that a hearing be held on  (date and hour)  at  (place of hearing)  to determine whether or not Health Permit No. _______, issued to you for the establishment known as _______ should be suspended or revoked.

The actions or inactions complained of are as follows: (set forth actions or inactions and the dates or such, and the code sections, statutes, or regulations violated).

Be prepared to present evidence and witnesses on your behalf at this hearing if you so desire. You may be represented by legal counsel. Your failure to appear will not prevent the issuance of an order of suspension or revocation should such order appear justified by the evidence presented.

The following rules and procedures shall govern hearing held pursuant to this chapter:

(a)

Hearing Officer—Disqualification of Director of Public Health. The Director of Public Health shall be the Hearing Officer. Upon the disqualification of the Director of Public Health to act as Hearing Officer, either on his own motion or that of the permittee acceded in by the Director, any member of the Board of Health may act as Hearing Officer. The sole grounds for disqualification are financial interest, bias or prejudice; prior knowledge of facts alone does not constitute bias or prejudice.

(b)

Time. The hearing date shall be no less than ten and no more than 30 days following the date on which notice thereof was sent to the permittee.

(c)

Continuance. The Hearing Officer may order such continuance or continuances as he deems necessary and proper.

(d)

Transcript of Hearing. The County is not required to furnish a shorthand reporter or any other method of reporting the hearing; the permittee may furnish such at his sole and nonreimbursable cost and expense if he so desires.

(e)

Waiver of Irregularities. Any procedural or evidentiary irregularities in the hearing are deemed to be waived unless objection is taken thereto and a specific ruling requested thereon.

(f)

Findings. Specific findings, including a finding that the public health, safety and welfare are subject to a clear and present danger, may be made but are not required. If specific findings are not made the Hearing Officer shall make a general finding that the actions or inactions complained of, as set forth in the Notice of Hearing, are true or untrue, and that such actions or inactions do or do not constitute a violation of the condition set forth in Section 8.04.100.

(g)

Decision and Order. If the Hearing Officer finds that the actions or inactions complained of are untrue he shall order that the proceedings are dismissed. If the Hearing Officer finds that the actions or inactions complained of are true, and that a violation as aforesaid has occurred, he shall order either that the permit be suspended for a period not to exceed six months or that the permit be revoked. The decision and order of the Hearing Officer shall be final unless an appeal is taken pursuant to Section 8.04.190.

(h)

Modification or Rescission of Order of Suspension. If the Hearing Officer orders that the permits be suspended for a certain period, the permittee may subsequently petition for the modification or rescission of the order of suspension and the reinstatement of the permit. The Hearing Officer, in his discretion, may grant or deny the petition; or he may grant the petition subject to the condition of the imposition of a probationary period, during which period any violation by the permittee of the condition set forth in Section 8.04.100 is grounds for summary suspension of the permit for the remainder of the period established by the original order of suspension, and is also grounds for the institution of new proceedings for suspension or revocation of the permit. The order of the Hearing Officer with respect to such petition is final, and no administrative appeal shall lie therefrom.

(i)

Probation.

(1)

If the Hearing Officer orders that the permit be suspended or revoked, he may, in the interest of justice and equity, further order that the order of suspension or revocation be stayed and the permittee be placed on probation for a period not to exceed three years. The Hearing Officer may grant probation on such conditions as he deems to be fair and reasonable. If the permittee is dissatisfied with the order of probation, or with the conditions thereof, he may reject the offer of probation in which event the order of suspension or revocation shall become final. If the permittee is satisfied with the order of probation he shall indicate such assent, and his agreement to be bound by the terms thereof, by affixing his signature thereto.

(2)

Upon the charge by the Health Officer of the violation by the permittee of a condition of probation, a hearing shall be held pursuant to this section, limited to the issue of whether or not such condition was in fact breached. If it is found that the condition was breached, the original order of suspension or revocation shall be forthwith enforced, and the probation in the same matter shall not be granted again.

(3)

Upon the petition of the permittee for termination of probation and release from the conditions thereof, the rules and procedures established by subsection (h) of this section shall apply except that the Hearing Officer shall either grant or deny such petition and shall not impose any condition or such grant or denial.

Any permittee aggrieved by the decision or the order of the Hearing Officer or by the denial of an application for a health permit may, within 15 days of the date of the written announcement of the decision and order of denial, appeal to the Board of Supervisors. Such appeal shall be effected by depositing in the office of the Clerk of the Board of Supervisors within said 15 days a notice of appeal which sets forth the notice of hearing and the decision and order to the Hearing Officer. The Clerk of the Board of Supervisors shall present the notice of appeal to the Board of Supervisors at their next regular meeting, at which time the Board shall set the matter for hearing de novo at the earliest date possible in light of its regular business.

The following rules and regulations shall govern appeals pursuant to this chapter:

(a)

Effect of Appeal. Upon the filing of the notice of appeal the order of the Hearing Officer shall be stayed unless the Hearing Officer has found that the public health, safety and welfare are threatened, in which case the Director of Public Health shall make order or orders as are necessary to safeguard the public health, safety and welfare. If the permittee agrees in writing to comply with such order or orders pending the outcome of the appeal the order of the Hearing Officer shall in that case also be stayed, otherwise it shall not be stayed.

(b)

Hearing de Novo. The Board of Supervisors shall hold a hearing de novo at which time the Health Officer and the permittee may offer any and all relevant evidence, whether or not such evidence was before the Hearing Officer, and may make oral arguments. The Board of Supervisors is not bound or limited in any way by the evidence before the Hearing Officer, although it may consider such evidence, or by the rulings, findings, decision or order of the Hearing Officer.

(c)

Continuance—Transcript—Irregularities—Findings—Decision—Order—Modification of Order—Probation. The provisions of subsections (c), (d), (e), (f), (g), (h) and (i) of Section 8.04.180 apply to hearings conducted pursuant to this section; provided, that in the hearing conducted pursuant to this section the Board of Supervisors shall exercise the powers given to the Hearing Officer by subsections (c), (d), (e), (f), (g), (h) and (i) of Section 8.04.180 and; provided further, that the decision and order of the Board of Supervisors shall be final for all purposes.