Section 20-1-34

Civil penalties for violation of chapter, etc.

(a) Notwithstanding the existence of any criminal penalty imposed for violations of this chapter and the rules and regulations promulgated hereunder, the department may, after a hearing thereon, impose a civil penalty for violation of this chapter or any rules or regulations promulgated hereunder regarding out-of-date Class A foods, or misbranded or adulterated food, in accordance with the classes provided in subsection (d) below.

(b) Any one offense, and all incidents or violations committed by a person, firm, association, or corporation, arising from the same transaction, shall constitute but one offense.

(c) The board shall by duly adopted rules or regulations, provide maximum penalty amounts to be imposed with regard to out-of-date Class A foods, or misbranded and adulterated food as provided below.

(d) After a public hearing thereon, the board shall, by duly adopted rules or regulations, establish five classes of violations with regard to misbranded and adulterated food.

(1) Class I violations shall be limited to minor or inadvertent violations involving small amounts of out-of-date Class A foods found for which no penalty shall be assessed but a written warning may be given by the department.

(2) Class II violations shall be limited to significant amounts of out-of-date Class A foods or such articles which have been out-of-date for significant periods of time. Penalties for Class II violations shall not exceed one hundred dollars ($100).

(3) Class III violations shall be limited to significant amounts of out-of-date Class A foods or significant amounts of such articles which have been out-of-date for significant periods of time; violations in multiple classes; and/or subsequent Class II violations within one year following a previous Class II violation. Penalties for Class III violations shall not exceed one thousand dollars ($1,000).

(4) Class IV violations shall be limited to food deemed misbranded under Section 20-1-25; large amounts of out-of-date Class A foods or significant amounts of such articles which have been out-of-date for extended periods of time; violations in multiple classes; and/or subsequent Class III violations within one year following a previous Class III violation. Penalties for Class IV violations shall not exceed five thousand dollars ($5,000).

(5) Class V violations shall be limited to food deemed adulterated under Section 20-1-22, and/or subsequent Class IV violations. Provided, however, to sustain a penalty under this subdivision, with regard to out-of-date Class A foods, there must be a showing by a preponderance of evidence that there were large amounts of out-of-date Class A foods found, or that significant amounts of such articles found had been out-of-date for extended periods of time and that the violations were willful, knowing, or intentional. Penalties for Class V violations shall not exceed a maximum penalty amount of ten thousand dollars ($10,000) and may include the revocation of the person's food safety permit.

(e) The board shall by duly adopted rules or regulations establish a list of items included in the definition of "potentially hazardous foods." The board shall also by duly adopted rules or regulations provide for detailed definitions of the above referenced classes of violations which shall include definitions of the terms "minor or inadvertent violations," "small amounts," "significant amounts," "significant periods of time," "large amounts," "extended periods of time," and similar terms.

(f) The failure of any person, firm, association, or corporation to pay an assessed penalty in a timely manner, as defined by duly adopted rules or regulations of the board, shall constitute grounds for the revocation of any food safety permit issued under this chapter. Such revocation shall be made pursuant to a due process hearing before a hearing officer and in the same manner as provided for suspension and revocation of permits under the provisions of Section 20-1-33(e).

(g) Under this section, appeals from an assessment of any penalty levied shall be made in a timely manner in accordance with the rules for contested cases under the Alabama Administrative Procedure Act, Section 41-22-12, et seq. Judicial review may be taken in circuit court in accordance with the provisions of the Alabama Administrative Procedure Act, Section 41-22-20, et seq.

The foregoing notwithstanding, in cases involving Class IV or Class V violations or permit revocations thereunder, judicial review shall be by trial de novo in circuit court in accordance with the provisions of the Alabama Administrative Procedure Act, Section 41-22-20 (j).

(h) All moneys received from the assessment of any penalty under this section shall accrue to the General Fund and shall be appropriated by the Legislature as provided by law.

(Act 2000-320, p. 505, §2.)