ALABAMA SAFE FOODS ACT OF 2000

RULES ADOPTED BY THE AGRICULTURE BOARD

UPDATED NOVEMBER 15, 2000

 80-1-22-. 32-. Classifications of violations for out-of-date Class "A" food and misbranded or adulterated foods 

(1) An "Equivalent number" shall be determined using a factor that takes into account the number of packages, case lots, containers or such other packaging and the length of time said products have passed an expiration date. The following factors shall be used to determine an "equivalent number":

(a) For each package that has passed the expiration date by less than four days the factor would be 0.5.

(b) For each package that has passed the expiration date by four to seven days the factor would be 0.75.

(c) For each package that has passed the expiration date by eight to fourteen days the factor would be 1.

(d) For each package that has passed the expiration date by greater than fourteen and less than 30 days the factor would be 1.5.

(e) For each package that has passed the expiration date by 30 days or more the factor would be 2.

(2) The equivalent number shall be determined by multiplying the number of out-of-date packages by the appropriate factor as specified in paragraph "(1)" of this rule. An equivalent number shall be determined for each of three primary areas, (Meat, Dairy, Baby Food and Infant Formula), as well as the equivalent number for the aggregate of all three areas. The following criteria shall be used in determining classes of violations for products offered for sale in retail establishments:

(a) Class I Violations: If each of the three areas have an "equivalent number" less than 20, and the aggregate of all three areas is less than 35, no civil penalty is required. A warning letter may be issued if the "equivalent number" is more than 10 and less than 20 in any of the three categories.

(b) Class II Violations: If any of the three areas have an "equivalent number" equal to or greater than 20 and less than 40 the violation is considered a Class II violation. If the total of all three areas result in an "equivalent number" equal to or greater than 35 and less than 105 the violation is considered a Class II violation.

c) Class III Violations: If any of the three areas have an "equivalent number" equal to or greater than 40 and less than 80 the violation is considered a Class III violation. If the total of all three areas result in an "equivalent number" equal to or greater than 105 and less than 130 the violation is considered a Class III violation. Subsequent Class II violations within a one year period shall also result in a Class III violation.

(d) Class IV Violations: If any of the three areas have an "equivalent number" equal to or greater than 80 the violation is considered a Class IV violation. If the total of all three areas result in an "equivalent number" equal to or greater than 130 the violation is considered a Class IV violation. Subsequent Class III violations within a one year period shall also result in a Class IV violation. Products deemed misbranded are considered a Class IV violation. More than ten packaged items offered for sale at retail without proper labeling to include ingredient statements and/or cure ingredients is a Class IV Violation and will result in a warning letter. Subsequent labeling violations will result in a penalty administered as a Class IV violation. Obscuring, removing, or extending existing open date statements shall be considered as misbranding and therefore a Class IV violation.

(e) Class V Violations: Subsequent Class IV violations within a one year period shall result in a Class V violation. Products found to be adulterated are considered a Class V violation. Adulterated products with food safety concerns of an immediate nature will be subject to penalties on the first violation.

(3) The same provisions in paragraph "(1)" of this rule used to determine equivalent numbers shall be used in the assessment of class violations as set forth herein for wholesale packages except that: the unit (package) through which the product is offered for sale shall constitute one package, i.e. case lots, large containers, etc. However, cases of products in storage at a retail facility shall be considered by the individual packages rather than case lots; except that cases of baby food and infant formula in unopened cases shall be considered as one unit. If the equivalent number is exceeded, the penalty shall be assessed in the appropriate class of violation. The following criteria shall be used in establishing class violations for wholesale packages:

(a) Class I Violations: (Wholesale distribution packages) If the out-of-date products have an "equivalent number" less than 5, no civil penalty is required. A warning letter may be issued if the "equivalent number" is more than 1 and less than 5. 

(b) Class II Violations: (Wholesale distribution packages) If the out-of-date products have an "equivalent number" equal to or greater than 5 and less than 20 the violation is considered a Class II violation. 

(c) Class III Violations: (Wholesale distribution packages) If the out-of-date products have an "equivalent number" equal to or greater than 20 and less than 40 the violation is considered a Class III violation. Subsequent Class II violations within a one year period shall also result in a Class III violation.

(d) Class IV Violations: (Wholesale distribution packages) If the out-of-date products have an "equivalent number" equal to or greater than 40 the violation is considered a Class IV violation. Subsequent Class III violations within a one year period shall also result in a Class IV violation. Products deemed misbranded are considered a Class IV violation. Obscuring, removing, or extending existing open date statements shall be considered as misbranding and therefore a Class IV violation.

(e) Class V Violations: Subsequent Class IV violations within a one year period shall result in a Class V violation. Products found to be adulterated are considered a Class V violation. Adulterated products with food safety concerns of an immediate nature will be subject to penalties on the first violation.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Act # 2000-320, Regular Session of Legislature, 2000

80-1-22-. 33 Open Date Statement-List of Additional 
Descriptive Terms

(1) In addition to the terms listed in §20-1-20 (definitions) for (14) open-date-statements, the following list of terms and other terms with similar import, shall also be included and considered as open-date statements:
"For full fresh flavor use by"
"For best quality purchase and use by date shown"
"Use/freeze by"
"Prepare or freeze by"
"For wholesome great taste, serve before date stamped below"
"Best when purchase by date"
"Best if sold by"
"Best used by" 
"Product expiration" 
"Expiration date"
"Best by" 
"Best before"
"Best when purchase by"
"Use before"
"Use by"
"Full freshness until date shown when stored unopened at 40 or below"
"Prepare by" 
"Fresh until" 
"Use or freeze by" 
"Sell or use by" 
"Freshness through"

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Act # 2000-320, Regular Session of Legislature, 2000

80-1-22-. 34  Definition of Potentially Hazardous Food under Alabama Safe Foods Act of 2000

(1) Potentially Hazardous Food as defined in subparagraph 1-201.10 ( B) (61) Food Code, 1999 recommendations of the United States Public Health Service Food and Drug Administration, National technical Information Service Publication PB 99-115925 and the same is hereby adopted and fully set out herein for reference:
(2) "(61) Potentially Hazardous Food.

(a) "Potentially hazardous food" means a FOOD that is
natural or synthetic and that requires temperature control because it is in a form capable of supporting:

(i) The rapid and progressive growth of infectious or toxigenic microorganisms;

(ii) The growth and toxin production of Clostridium botulinum; or

(iii) In raw shell eggs, the growth of Salmonella Enteritidis.

(b)" Potentially hazardous food" includes an animal FOOD (a FOOD of animal origin) that is raw or heat-treated; a FOOD of plant origin that is heat-treated or consists of raw seed sprouts; cut melons; or garlic-in-oil mixtures that are not modified in a way that results in mixtures that do not support growth as specified under Subparagraph (a) of this definition.

(c)" Potentially hazardous food" does not include:

(i) An air-cooled hard-boil egg with shell intact;

(ii) A FOOD with an aw value of 0.85 or less;

(iii) A FOOD with a pH level of 4.6 or below when measured at 24°C (75°F);

(iv) A FOOD, in an unopened HERMETICALLY SEALED CONTAINER, that is commercially processed to achieve and maintain commercial sterility under conditions of non-refrigerated storage and distribution;

(v) A FOOD for which laboratory evidence demonstrates that the rapid and progressive growth of infectious or toxigenic microorganisms or the growth of S. Enteritidis in eggs or C. botulinum can not occur, such as a FOOD that has an aw and a pH that are above the levels specified under Subparagraphs (c) (ii) and (iii) of this definition and that may contain a preservative, other barrier to the growth of microorganisms, or a combination of barriers that inhibit the growth of microorganisms; or

(vi) A FOOD that does not support the growth of microorganisms as specified under Subparagraph (a) of this definition even though the Food may contain an infectious or toxigenic microorganism or chemical or physical contaminant at a level sufficient to cause illness."

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Act # 2000-320, Regular Session of Legislature, 2000

80-1-22-. 35  List of Potentially Hazardous Foods and Exceptions

(1) The following includes, but for enforcement purposes, is not limited to, a list of examples considered to be potentially hazardous foods, and some exceptions.

(a) All Meat products requiring refrigeration to include but not limited to the following:

Fresh or frozen raw meats (poultry, beef, pork, exotics)
Ready to eat cooked meats (fresh or frozen) any specie
Cured meats that require refrigeration
Cooked or heat treated meats that require refrigeration
Processed sausage products that require refrigeration
Fresh refrigerated or frozen chili products
Sandwiches containing meats or other potentially hazardous
foods
Seafood
Shellfish
Smoked fish that requires refrigeration
Fish (fresh or frozen)
Fresh or frozen entrees that contain meat
Lunchables (variety packs of meats plus)
Meat salads such as chicken salad, tuna salad, ham salad

(b) Dairy Products requiring refrigeration to include but not limited to the following:
Yogurt
Low fat yogurt
Non fat yogurt
Milk (all forms)
Lactose reduced milk
Acidophilus milk
Chocolate milk
Buttermilk
Cream
Cottage cheese
Sour cream
Salad dressing containing dairy products and requiring
refrigeration
Eggnog
Half and half
Cream cheese
Pimento cheese
Pudding that requires refrigeration
Ricotta cheese
Dips with dairy products or meat products that require
refrigeration
Butter
Ice cream
Sherbet
Ice milk
Frozen dessert that contains dairy items that requires temp
control
Frozen yogurt
Imitation ice cream
Non fat ice cream
Shake mix
Yogurt mix
Non-dairy mix
Frozen desert mix
Novelty items that contain ice cream type products
Pies that contain eggs or dairy products and require
refrigeration
Cheese cakes
Fresh or frozen pastries that contain meat or eggs and req
refrigeration
Soft cheese (Brie, Camembert, Teleme)

(c) Egg products requiring refrigeration to include, but not limited to the following:
In shell raw eggs
Egg whites
Egg beaters and similar products
Egg substitutes
Pasta containing eggs that require refrigeration
Eggnog

(d) Items of food that may be excluded from a criteria of potentially hazardous foods include but are not limited to the following:
Chocolate drinks (no milk fat or significant dairy items)
Flavored drinks (no milk fat or significant dairy items)
Biscuits
Margarine
Cookie dough
Jello
Spreads
Cool whip
Shelf stable meat items 
canned meat products that, do not require refrigeration 
dry cured items that do not require refrigeration 
jerky type meat items that do not require refrigeration fermented meat items that do not require refrigeration
Shelf stable ultra pasteurized milk that doesn't require refrigeration
Bakery desserts (cinnamon rolls etc. That may be refrigerated)

(e) Items of cheese that may be excluded from a criteria of potentially hazardous foods include but are not limited to the following:
Asiago
Cheddar
Gruyere
Parmesan
Reggiano
Romano
Sap Sago
Blue
Brick
Caciocavallo Siciliano
Colby
Edam
Gorgonzala
Gouda
Limburger
Monterey
Monterey Jack
Pasteurized process cheese
Imitation cheese
Provolone
Swiss
Emmentaler
Roquefort

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Act # 2000-320, Regular Session of Legislature, 2000

80-1-22-. 36  Prohibitions and Exemptions for
Altering Open-Date Statements

(1) Packages of potentially hazardous foods bearing an open date statement are not to be repacked or relabeled or otherwise altered in a manner that would change the open date statement originally placed on the package. It is not permissible to reprocess products by freezing, slicing, grinding, cubing, dicing, marinating, chopping, or other similar methods unless the original open date statement is maintained on the product label.

(2) In the case of smoking, curing, fully cooking or conversion to a shelf stable product through drying or fermentation of fresh or frozen in-date raw meat products, it may be acceptable to alter the original open date statement that had been listed on the original product. Provided, however, that in these special situations an appropriate date shall be placed on the product after completion of the process.

80-1-22-. 36- .36 - Exemptions for Shipping labels, and other non-official labels

Information affixed to containers of meat and poultry food products and case lots of other food products that is not a part of the approved label and is not intended to address quality or condition of the product such as pic labels, routing slips, tracking stickers and similar devices that are intended to provide only shipping data are considered exempt from the dating requirements of the Alabama Safe Foods Act of 2000, except when the commissioner determines such information is subject to be displayed at the retail level and may mislead consumers.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Act # 2000-320, Regular Session of Legislature, 2000

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.

Class II violations shall be limited to significant amounts of out-of-date Class A food 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).

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 with one year following a previous Class II violation. Penalties for Class III violations shall not exceed one thousand dollars ($1,000).

Class IV violations shall be limited to food deemed misbranded under Section 20-1-25, Code of Alabama 1975; 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).

Class V violations shall be limited to food deemed adulterated under Section 20-1-22, Code of Alabama 1975, and/or subsequent Class IV violations. Provided, however, to sustain a penalty under this subsection, 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 amount 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.

80-1-22-.27 Special Requirements For Potentially Hazardous Foods.

(1) For the purposes of this Rule, "Potentially hazardous food" shall be as defined in Rule 80-1-22-.34 herein.

(2) The temperature of potentially hazardous food shall be held at an ambient temperature of 45° F or below at all times when being transported, stored, or displayed for sale except for brief period of loading or unloading.

(3) The temperature of potentially hazardous frozen food shall be 0° F or below at all times when being transported, stored, or displayed for sale except for defrost cycles and brief periods of loading or unloading.

(4) Potentially hazardous food that is transported, stored or displayed in violation of this rule shall be deemed adulterated under the provisions of Code of Alabama (1975), Section 20-1-22.

(5) Any person, firm, corporation or association engaged in the business of storing, transporting or displaying for sale potentially hazardous food on the effective date of this rule that is not meeting the requirements of this rule, shall be granted a reasonable time not to exceed sixty (60) days after the effective date, to be determined by the Commissioner of Agriculture & Industries, in his discretion, to meet said requirements.

AUTHOR: Reginald L. Sorrells

STATUTORY: d 20-1-2, Code of Alabama (1975)

80-1-22-.30 Special Requirements for Over-The-Counter (OTC) Drugs

(1) For the purpose of this Rule, Open-Date Statement shall mean the terms "Sell By _____"; "Not to be Sold After ________"; "Best If Used By _________"; "Expiration _________"; or words of similar import; or a date without additional words shall be considered under the jurisdiction of the Rule.

(2) Code of Federal Regulations 21 Part 211.137 is hereby adopted for use herein and non-exempt, Over-The-Counter (OTC) drugs shall bear expiration dates as set forth therein.

(3) OTC drugs shall be considered as not meeting requirements for strength and purity once it reaches the expiration date.

(4) OTC drugs are not to be sold or offered for sale at retail or wholesale after the date stated on the product label.

(5) OTC drugs offered for sale in violation of this Rule shall be deemed adulterated under the provision of Code of Alabama, 1975, Section 20-1-24.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Alabama, 1975, Sections 20-1-24 and 20-1-25.

80-1-22-.38 General Provisions For Hearings On Contested Cases

(1) These rules apply to the initiation, hearing and resolution of certain contested cases of the State Department of Agriculture and Industries under the Alabama Administrative Procedure Act. These rules apply to actions governed by Code of Ala. 1975, d d 20-1-1 through 20-1-37 and rules promulgated thereunder. These rules do not apply to actions governed by Code of Ala. 1975, d 2-2-18, or rules promulgated thereunder or actions governed under other specific rules of the State Board of Agriculture and Industries.

(2) Statutory Authority. These rules are promulgated and adopted pursuant to the authority of Code of Ala. 1975, d d 20-1-1 through 20-1-37, and d d 41-22-1, et seq., and other specific enabling statutes.

(3) Administration. The General Counsel of the Department of Agriculture and Industries will coordinate the hearing of contested cases within the purview of the Alabama Administrative Procedure Act, Code of Ala. 1975, d d 41-22-1, et seq. Said proceedings encompass food safety permit proceedings, and all other hearings required by law to be held pursuant to the provisions of Code of Ala. 1975, d d 20-1-1 through 20-1-37, the Department of Agriculture and Industries.

(4) Correspondence. Correspondence and filing or service on the General Counsel shall be at the following address:

1445 Federal Drive, Room 108

Montgomery, Alabama 36107-1100

Author: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Ala. 1975, d 41-22-4.

80-1-22-.39 Service On Food Safety Permittee Or Other Party

(1) Service of any document required to be served on food safety permittee or other party pursuant to the provisions of the Administrative Procedure Act in those contested cases, Code of Ala. 1975, d d 41-22-1, et seq., taken under these rules may be make by any of the following methods unless a specific method is required by law:

(a) by certified mail, return receipt requested; or

(b) by any sheriff or another person authorized to make service of process in civil proceedings; or

(c) by any representative of the Department of Agriculture and Industries; or

(d) by any other method allowable under the Alabama Rules of Civil Procedure as such may be amended.

(2) If service of process is refused or unclaimed, and the certified mail receipt or the return of the person serving process so indicates, the Department may serve the document by first-class mail addressed to the permittee or other person at his last known address as shown in the Department records. Service shall be deemed complete three (3) days after the depositing of same in the United States mail.

(3) Where the rule does not require "service," documents may be mailed first-class mail or hand delivered.

AUTHOR: Reginald L. Sorrells

STATUTORY AUHORITY: Code of Ala. 1975, d 41-22-4.

80-1-22-.40 Time. Time within which an Act must be done under the provisions of these rules shall be computed in the manner prescribed by Code of Ala. 1975, d 1-1-4.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Ala. 1975, d 41-22-4.

80-1-22-.41 Contested Cases.

(1) A contested case is an action whereby a food safety permittee or prospective permittee, or other affected person is aggrieved by an action of the staff of the Department of Agriculture and Industries. Such actions include: the granting or denial of food safety permits; the change in status of a permit; or revocation, suspension or modification of a permit.

(2) An action to revoke, suspend, or modify a food safety permit by the Department shall be initiated by the service of a notice of intent to revoke, or modify, or suspend the permit or to take other adverse action on the permittee.

(3) Contested cases initiated by the permittee, or prospective permittee shall be initiated by the filing of a notice of appeal with the Department’s General Counsel with filing of a copy upon the Department. The notice of appeal must be filed with the General Counsel within 15 days of the unfavorable determination by the Department. Failure to timely file a notice of appeal with the General Counsel waives the right of appeal and the determination becomes final.

(4) Contested cases initiated by an affected party other than the permittee, or prospective permittee, or the Department shall be so initiated by the filing with the General Counsel of a notice of appeal of an administrative decision by the staff of the Department within 15 days of the issuance of such staff decision. Copies of such notice of appeal shall be served on the permittee or prospective permittee and any other affected parties. Failure to timely file a notice of appeal waives such person’s right of appeal.

(5) The General Counsel will schedule a hearing not less than 15 days nor more than 35 days from the filing of the notice of a contested case unless a different time is required by statute or unless the parties agree to a time. Continuances will be granted for good cause.

(6) Upon scheduling the hearing, the General Counsel shall send written notice to all parties. The notice shall include at a minimum, the following:

(a) a statement of the time, place and nature of the hearing;

(b) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(c) a reference to the particular sections of the statutes and rules involved; and

(d) a plain statement of the factual matters asserted.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Ala. 1975, d 41-22-12.

80-1-22-.42 Evidence In Contested Cases.

The only evidence that the Hearing Officer shall consider in making a finding of shall be sworn testimony and exhibits accepted in the hearing or as otherwise agreed upon among the parties.

(a) Hearsay Evidence. Hearsay testimony shall be allowed in any hearing so long as it has probative value as justice required in the opinion of the hearing officer.

(b) Affidavits and other Written Evidence.

(1) Affidavits shall be admissible in any hearing so long as they have probative value and the affiant, for reasons of impossibility or impracticality, cannot be present for testimony at the hearing. The burden of impossibility or impracticality shall be upon the offerer of the affidavit.

(2) Signed letters from physicians on the physician’s letterhead shall be considered as an affidavit.

(c) Depositions. A deposition where all parties have been given notice of the taking of the deposition shall be admitted if any party so requests subject to standard evidentiary objection properly preserved during the deposition.

(d) Official Notice. All statutes of the United States and of the State of Alabama and all published rules and regulations of federal agencies, the State Board of Agriculture and Industries or of other Alabama administrative agencies shall be deemed admissible by mere identification of the statute or published rules or regulations.

(e) Admissibility. All evidence, whether documentary or ore tenus, to be admissible, shall be germane, material and relevant to the issues brought out by the complaint, answer or notice of hearing. Evidence that might otherwise be germane, material or relevant, if found to be repetitious, may, at the discretion of the hearing officer, be disallowed.

(f) Documentary Evidence. Any document or a legible copy of said document shall be admissible if the document or copy shall be proven to be a part of the business or personal records of any party, person, company or other legal entity.

(g) Witnesses. The hearing officer shall upon request of a party issue subpoenas to compel any person to testify under oath at any hearing in the same manner as in the civil courts. Employees of the State Department of Agriculture and Industries shall be made available for testimony upon timely request of a party. The refusal of any witness to testify may be considered evidence.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Ala. 1975, d 41-22-12.

80-1-22-.43 Intervention.

(1) Upon timely application therefor filed with the General Counsel, any affected person shall be permitted to intervene in any hearing to contest an administrative action of the Department when a statute confers an unconditional right to intervene, or when the applicant has an individual interest in the outcome of the hearing as distinguished from a public interest and the representation of the interest of the applicant by persons already made parties is inadequate.

(2) An application to intervene shall contain:

(a) the name, mailing address, and telephone number of the applicant;

(b) a short and plain statement identifying the administrative action of the Department being contested and, if possible, the name of the person who filed the request for a hearing to contest such action;

(c) a short and plain statement of the grounds for the application, including reference to any statute which confers an unconditional right to intervene or a statement of the individual interest of the applicant in the outcome of the hearing and a statement of why the representation of the interest of the applicant by persons already parties in the hearing is adequate; and

(d) the name, mailing address, and telephone number of the applicant’s attorney, if represented by an attorney.

(3) Within five days after the filing of an application to intervene in any hearing to contest an administrative action of the Department, the General Counsel shall mail a copy of such application to each of the parties.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Ala. 1975, d d 20-1-2, 41-22-12, 41-22-14.

80-1-22-.44 Consolidation of Hearings. The Commissioner of Agriculture and Industries may order consolidation, in whole or in part, of two or more hearings to contest an administrative action of the Department whenever it appears that such consolidation would expedite or simplify consideration of the issues and no party would be prejudiced thereby.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Ala. 1975, d 41-22-12

80-1-22-.45 Informal Settlement Conferences. Informal settlement conferences before the staff of the Department of agriculture may be held in an attempt to resolve contested cases. Such informal settlement conferences shall not be of record and shall not be adversarial in nature but shall be utilized to resolve the contested case prior to formal hearings for the record.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Ala. 1975, d 41-22-12.

80-1-22-.46 Hearing Procedures.

(1) A hearing officer appointed by the Commissioner of Agriculture and Industries shall preside at contested food safety case hearings. The hearing officer shall serve as trier of fact.

(2) All parties will be afforded an opportunity to respond and present witness and evidence and argument on all material issues involved and to be represented by counsel at their own expense. The Department will be represented by the General Counsel or his designee.

(3) If a party fails to appear in a contested case proceeding after proof of proper service of notice, the hearing officer may proceed with the hearing and make a decision in the absence of the party.

(4) The hearing officer shall conduct the evidentiary hearing substantially as follows:

(a) open the record and receive appearances;

(b) direct the giving of oaths;

(c) receive testimony and exhibits presented by the parties;

(d) interrogate witnesses, if deemed necessary;

(e) rule on motions and objections;

(f) require oral arguments and submission of briefs and other authority when necessary;

(g) close the proceedings; and

(h) prepare written findings of fact and conclusions of law and present them, with a recommendation and proposed order, together with the complete record, to the Commissioner of Agriculture and Industries.

(5) The burden of going forward with the evidence shall be upon the party initiating the contested case proceedings who may open and close the evidentiary portion of the proceedings.

(6) The proceedings of the evidentiary hearing shall be recorded and transcribed by a certified court reporter. Such record shall be submitted by the hearing officer to the Commissioner of Agriculture and Industries as a part of the record of the hearing.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Ala. 1975, d 41-22-12.

80-1-22-.47 Resolution of Contested Cases.

(1) On presentation of the hearing officer’s findings of fact and conclusions of law, recommendation and proposed order, the General Counsel will mail copies to each party.

(2) The parties will have 15 days from the date of mailing in which to present to the Commissioner of Agriculture and Industries written objections to the proposed order, alternative language or briefs. The Commissioner of Agriculture and Industries, in his discretion, may permit oral argument.

(3) Upon receiving the hearing officer’s findings of fact and conclusions of law, recommendation, proposed order and the complete hearing record, and the parties’ objections, alternative language, briefs and oral argument, if allowed, the Commissioner of Agriculture and Industries will enter his order which may accept, reject, or modify the proposed order of the hearing officer.

AUTHOR: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Ala. 1975, d 41-22-12.

80-1-22-.48 Proceedings For Adverse Permit Actions.

The Department of Agriculture and Industries shall utilize the contested case procedure in this chapter to take any adverse action on any food safety permit.

(a) Such adverse permit actions shall be initiated by notices served on the affected permittee as provided in Rule 420-1-3-.02 except that revocation and suspension actions shall be served only by registered or certified mail, return receipt requested. Such notice shall include the charges and specifications including a description of the grounds for the proposed action and the date, place and time of the meeting at which such proposed adverse action shall be heard. Notices shall be served at least 30 days prior to the date of the hearing.

(b) Permittees shall be provided an opportunity to respond in writing and/or orally. Permittees may be represented by legal counsel and may present evidence in their defense. The staff of the State Department of Agriculture and Industries and the permittee may present and cross-examine witnesses and the hearing officer may examine and cross-examine witnesses.

(c) The burden of proof rests with the staff of the Department of Agriculture and Industries.

(d) Revocation and suspension proceedings shall be recorded by a certified court reporter. All other proceedings may, but shall not necessarily be recorded by a certified court reporter. Such proceedings may, as an alternative, be recorded by tape recorder or other electronic means or by stenographic notes or summaries prepared by the staff, so long as such summaries adequately and accurately reflect the testimony before the hearing officer.

(e) The hearing officer shall, upon completion of such hearing, make findings of fact on all adverse action and shall make recommendations to the Commissioner of Agriculture and Industries which shall consider such recommendations and shall reverse, affirm, or modify the recommendations of the hearing officer.

(1) Any permittee aggrieved by an order of the Commissioner of Agriculture and Industries who desires to have the same modified or set aside may, within 15 days after the entry of the order, file an application for rehearing, which shall specify in detail the grounds for the relief sought therein and the authorities in support thereof.

(2) The filing of such an application for rehearing shall not extend, modify, suspend or delay the effective date of the order, and said order shall take effect on the date fixed by the Commissioner of Agriculture and Industries and shall continue in effect unless and until said application shall be granted or until said order shall be superseded, modified, or set aside in a manner provided by law.

(3) Such application for rehearing will lie only if the final order is:

(i) In violation of constitutional or statutory provisions;

(ii) In excess of the statutory authority of the Commissioner of Agriculture and Industries;

(iii) In violation of a rule of the State Board of Agriculture and Industries;

(iv) Made upon unlawful procedure;

(v) Affected by other error of law;

(vi) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(vii) Unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

(4) Copies of such application for rehearing shall be served on all parties of record, who may file replies thereto.

(5) Within 30 days from the filing of an application, the Commissioner of Agriculture and Industries may in his or her discretion issue an order:

(i) Setting a hearing on the application for a rehearing which shall be heard as soon as practicable; or

(ii) With reference to the application without a hearing; or

(iii) Granting or denying the application.

(6) If the Commissioner of Agriculture and Industries enters no order whatsoever regarding the application within the 30-day period, the application shall be deemed to have been denied as of the expiration of the 30-day period.

(7) In no event shall a party be required to file an application for rehearing as a condition of applying for judicial review.

AUTHORS: Reginald L. Sorrells

STATUTORY AUTHORITY: Code of Ala. 1975, d d 20-1-1, 20-1-2, 41-22-12, 41-22-17, 41-22-20.