18 AAC 31.905. Permit suspension and establishment closure

(a) The department may, without prior warning, notice, or hearing, suspend a permit and require that the food establishment immediately stop operating if

(1) an imminent health hazard exists;

(2) a rating form was used to record the results of an inspection under 18 AAC 31.900, and the rating is less than 70;

(3) a nonrating form was used to record the results of an inspection under 18 AAC 31.900, and the same type of critical violations is noted in three or more critical violation categories during

(A) a reinspection required under 18 AAC 31.900(f) (2); or

(B) a second inspection of the establishment during a 12-month period;

(4) the operator or an employee interferes with a department employee in the performance of official duties;

(5) a food establishment is placed under a boil water notice under 18 AAC 80.635 because of violations of the maximum contaminant level for coliform bacteria, and if the operator fails to take the actions required by 18 AAC 31.500(e) ;

(6) the department advises under 18 AAC 80 that one or more samples of the food establishment's public drinking water supply are positive for fecal coliforms;

(7) the operator fails to comply with the terms of a conditional permit issued under 18 AAC 31.020(n) ; or

(8) critical and repeated violations of a requirement of this chapter occur.

(b) The department may, without prior warning, notice or hearing, issue a notice of closure to a food establishment and require that the food establishment immediately stop operating if

(1) an imminent health hazard exists;

(2) the operator fails to submit plans as required by 18 AAC 31.040, or an inspection or self-inspection form indicates that construction or renovation at the facility is not in substantial compliance with this chapter;

(3) the operator fails to submit a permit application for a food establishment or change of operator as required by 18 AAC 31.030;

(4) the operator was not granted a permit under this chapter; or

(5) the operator fails to pay a permit fee required by 18 AAC 31.050.

(c) After suspending a permit or issuing a notice of closure, the department will provide an opportunity for a hearing as follows:

(1) the operator may, in writing, request a hearing under this subsection

(A) within 10 days after receiving a notice of suspension under (a) of this section; or

(B) within 10 days after receiving a notice of closure under (b) of this section;

(2) if the department receives a timely request for a hearing under (1) of this subsection, the department will hold the hearing within 14 days after receipt of the request;

(3) a hearing under this subsection is before

(A) the commissioner; or

(B) an individual designated by the commissioner to hear the matter and prepare a recommended decision for the commissioner's review;

(4) in conducting the hearing under this subsection, the department will follow the procedures for an adjudicatory hearing in 18 AAC 15.240 - 18 AAC 15.340; in addition,

(A) the burden of proof and of going forward with the evidence is upon the department; and

(B) the commissioner or commissioner's designee will set the timelines for the procedures in 18 AAC 15.240 - 18 AAC 15.340 to ensure a timely hearing under (2) of this subsection;

(5) after a hearing under this subsection, the commissioner or designee will affirm, modify, or set aside the suspension or closure.

(d) The department may suspend a conditional permit issued under 18 AAC 31.020 if

(1) the department determines that a suspension would serve the interests of public health or consumer protection;

(2) each violation specified under 18 AAC 31.020(o) is not corrected by the date indicated on the conditional permit;

(3) the owner or operator does not make fee payments in compliance with a fee schedule established under 18 AAC 31.020(n) (4) and (o)(2); or

(4) drinking water plans or wastewater plans submitted as required by 18 AAC 31.030 are not approved.

(e) This section does not affect a person's right to a hearing under the Administrative Procedure Act (AS 44.62).

History: Eff. 5/18/97, Register 142; am 12/19/99, Register 152; am 12/30/2000, Register 156; am 6/28/2001, Register 158; am 7/11/2002, Register 163; am 12/1/2004, Register 172

Authority: AS 17.20.005

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