Food Permit Enforcement Program

Introduction
Retail food establishments in Santa Clara County owe a tremendous amount to their workers. According to data shared by the California Division of Labor Standards Enforcement in 2015, workers in the Santa Clara County filed the highest number of wage theft claims in the State of California. A County analysis of judgments filed between January 2015 and September 2019 found that retail food vendors owe nearly $5 million in back wages to employees, which is an estimated $2,900 per employee.

In view of especially problematic wage theft practices in the restaurant industry and the vulnerability of retail food workers, the Board of Supervisors approved Phase I of the Food Permit Enforcement Program to encourage payment of existing judgments by conditioning the issuance, renewal, or retention of food facility permits on compliance with labor standards.

How It Works
The Office of Labor Standards Enforcement (OLSE) in partnership with the Santa Clara County Department of Environmental Health - Consumer and Environmental Protection Agency (DEH) will engage retail food vendors with current existing judgments for labor violations such as unpaid wages to encourage payment of such judgments.

If a retail food vendor is determined to be in violation of their judgment for non-payment, the County of Santa Clara may elect to temporarily suspend or revoke the vendor's food health permit.

For more information about the program please contact the Office of Labor Standards Enforcement or call the OLSE Advice Line for assistance with compliance. Callers may remain anonymous.

What to Expect
The Food Permit Enforcement Program will launch Phase I of its operations in the cities of Sunnyvale, Mountain View, and San Jose (Zip Code Areas 95112 and 95113). Food Facility Permittees with existing judgments for violations that fall under the OLSE scope of enforcement can expect to receive Notices of Existing Judgments beginning December 2019. The Food Permit Enforcement Program will expand operations to other Santa Clara County cities in subsequent phases until it is fully operational in all fifteen cities that comprise Santa Clara County.

Overview of Enforcement Procedure

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1. Notice of Existing Judgment (15 days to comply)

When OLSE learns of an outstanding judgment against a permitted food facility for violation of laws prohibiting wage theft, sexual harassment, sexual assault, or retaliation in a pilot jurisdiction, OLSE will send a Notice of Existing Judgment to the food facility permitholder.

The Notice of Existing Judgment will identify the judgment, explain that the underlying violation and the failure to comply with the judgment are violations of the condition of the employer’s food facility permit, and demand that the permitholder respond within 15 days to (1) prove that the permitholder is in full compliance with the judgment, or (2) that the judgment is not final or does not apply to the permitholder, or (3) acknowledge the outstanding judgment and request assistance or additional time to come into compliance with the judgment. 

2. Notice to Comply (15 days to comply)

If the permitholder does not respond to the Notice of Existing Judgment, prove that it is in compliance with the judgment, prove that the judgment is not final or does not apply, or enter into a Compliance Agreement, then DEH and OLSE will together send the permitholder a Notice to Comply.

The Notice to Comply will inform the employer that an enforcement case against them is now open and active with the DEH and its food facility permit may be suspended or revoked if the employer fails to comply with the judgment or prove that the judgment is not final or does not apply within 15 days.

If the permitholder requests assistance or additional time, DEH and OLSE can meet with the permitholder to discuss the issue and negotiate a Compliance Agreement that gives the permitholder more time to comply with the judgment. OLSE and DEH will collaborate with County Counsel during this process, including when  assessing the permitholder’s response and any proffered evidence, and meeting with permitholders.

OLSE Investigator
An OLSE Investigator may follow up on the Notice to Comply by directly contacting the permitholder by phone to confirm receipt of the notice, establish a contact, and answer any questions the permitholder may have. Although this outreach effort is a courtesy well beyond what the permitholder is entitled to under the law, it helps OLSE to fulfill its mission to provide a level playing field for businesses by assisting employers seeking to comply with the law to come into compliance and to avoid unnecessary suspensions or revocations.
Compliance Agreement
The Notice to Comply will invite permitholders to contact OLSE if they require assistance or more time to come into compliance with an outstanding judgment—for example, because they do not have the cash or revenue necessary to pay off the judgment immediately. In these circumstances, OLSE and DEH, in collaboration with County Counsel, will host a settlement meeting with the permitholder and determine whether it can help the permitholder to comply with the judgment, such as arranging a monthly payment plan or otherwise extending the deadline to comply. The County will memorialize any such agreement in a Compliance Agreement that authorizes permit suspension or revocation if the permitholder violates the agreement. Upon request, OLSE will endeavor to arrange translation for permitholders who may require them at this settlement conference.

3. Notice of Violation (15 days to comply OR request a hearing before the Office of the County Hearing Officer)

If the permitholder does not respond to the Notice to Comply, prove that it is in compliance with the judgment, prove that the judgment is not final or does not apply, or enter into a Compliance Agreement within 15 days of the Notice, then DEH and OLSE will together send the permitholder a Notice of Violation.  The Notice of Violation will inform the permitholder that its permit will be suspended for a minimum of five days and the effective date of that suspension , and will further inform the permitholder of its right to request a hearing within 15 days before the Office of the County Hearing Officer. Depending on the nature and severity of the existing judgment and OLSE's efforts to engage the permitholder, DEH may suspend the permit for a minimum of 5 days up to 30 days.

Notices of Violation will be issued under the following scenarios:

Non-Response
DEH and OLSE will issue a Notice of Violation if the permitholder does not respond to the Notice to Comply. OLSE may elect to make additional outreach efforts to permitholders to assist them to comply with outstanding judgments before suspending permits with the possibility of revocation.

Non-Payment
The Notice to Comply will demand that the food facility permitholder come into complete compliance with the judgment. When a permitholder’s failure to comply with the judgment by the deadline specified in the Notice to Comply is paired with a permitholder’s failure to request a settlement meeting, DEH and OLSE may conclude that the permitholder has not complied and will not comply with the judgment.

Breach of  Compliance  Agreement
Once a Compliance Agreement is in place, a permitholder’s failure to do what it promises—e.g., to make monthly payments or to come into full compliance by a specified date—can result in a finding that the permitholder has not complied and will not comply with the judgment.
Hearing before the Office of the County Hearing Officer

If a permitholder requests a hearing by the deadline specified in the Notice of Violation, then a hearing will be held before the Office of the County Hearing Officer at which DEH and OLSE, in partnership with County Counsel, will explain the permitholder’s violation of the conditions of the permit and request suspension or revocation, and the permitholder will have the opportunity to present its own evidence and argument as to why its permit should not be suspended or revoked.  After the hearing, the Hearing Officer will issue a decision that will decide whether to suspend or revoke the permit and how long any suspension will last.  The permitholder may request review of a Hearing Officer decision by the Superior Court.

4. Suspension of Food Facility Permit (minimum suspension of 5 days)

If the permitholder does not respond to the Notice of Violation, prove that it is in compliance with the judgment, prove that the judgment is not final or does not apply, or enter into a Compliance Agreement within 30 days of the Notice, then DEH will suspend the permitholder's Food Facility Permit on the date specified in the Notice of Violation and provide public notice of the suspension and the reason(s) for the suspension on its website. OLSE will also provide similar public notice on its own website.

An enforcement action ends when all outstanding judgments are paid in full. A permitholder can halt enforcement at any time by paying the existing judgment in full or entering into a compliance agreement that ensures full payment of judgments by a specific date agreed upon by all parties.

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