YORK -- A local orchard must stop selling food because of a dispute with DHEC over how it makes its apple cider doughnuts.
"Our discouragement is over balanced by the confidence of knowing we haven't done anything wrong," said Fritz Gusmer, who along with his wife, Catherine, owns the Windy Hill Orchard in York. The orchard's food sales were banned in the fall by a South Carolina Administrative Law Court.
Windy Hill Orchard recently appealed the court decision, which required it to stop all food service operations until it gets a retail food establishment permit. The orchard also must pay a civil penalty of $24,000 and a court sanction of $12,000.
The orchard, known for its apple cider doughnuts, annual fall festival and appearances by Johnny Appleseed, has opened every August since 1989.
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Windy Hill also makes and sells cider, apple butter, apple turnovers and apple pies. It provides educational tours of its apple orchard and allows customers to pick apples for purchase, and visit farm animals.
"We've been kind of a niche phenomenon," Gusmer said. "We started the whole agri-tourism thing here in the York County area."
According to court documents, DHEC contends Windy Hill Orchard required a retail food establishment permit during its 2007 season. DHEC contended the orchard was cooking food for public consumption that was potentially hazardous and that required more than minimal preparation. DHEC said it told Windy Hill on numerous occasions it needed a permit.
DHEC refused to comment because an appeal is pending, spokesman Adam Myrick said.
Gusmer said Windy Hill is not required to obtain a retail food establishment permit because it meets the legal definition of a permanent food stand. He said food sold by the orchard is not potentially hazardous and it requires minimal preparation, which makes it a permanent food stand.
"We cannot understand what their problem is," Gusmer said about DHEC. "For 20 years, they haven't had a problem with us and all of a sudden they say we are doing something wrong."
The food under fire is the doughnuts. Court documents state DHEC defines food as potentially hazardous if it could support rapid growth of microorganisms, including raw food products, pies and dry mixes.
DHEC stated the doughnut mix used by Windy Hill was potentially hazardous once the dry doughnut mix containing dried milk and egg products was mixed with cider.
Gusmer said the batter and cider mixture was not potentially hazardous because the acidic properties of the cider would retard the growth of microorganisms.
The regulation in question applies to the food sold, not the raw materials used to make the product, Gusmer said.
DHEC documents state another reason Windy Hill required a retail food establishment permit was because the method Windy Hill used to make cake doughnuts involved more than minimal preparation.
DHEC defines minimal food preparation as not requiring cutting, mixing or extensive equipment, for example pretzels, popcorn, cotton candy, candy apples, french fries, soft drinks, draft beer, some pork skins and boiled peanuts.
"Preparation of all of those products are far more extensive than what we do with our doughnuts," said Gusmer, referring to the examples given by DHEC. "To cook doughnuts, we use the same method used to cook french fries."
Gusmer said when the orchard applied for its permits in 1989, DHEC officials sent him a letter stating it did not require a retail food establishment permit because it qualified as a permanent food stand.
DHEC said in mid-1995, separate regulations regarding food sales were combined, according to court records. One regulation dealt mostly with restaurants and the other with retail markets, grocery stores and convenience store operations. The combined regulations applied to all retail food establishments, documents state.
A DHEC expert testified it was possible a facility that was not required to get a permit under the old regulations would be required to get a permit under the new ones, according to the document.
In order to obtain the retail food establishment permit, the Gusmers would have to invest more than $50,000 to upgrade the facility, Gusmer said.
Area resident Cynthia Spratley said she buys food products from Windy Hill. For 12 years, she has taken her children, ages 10, 16 and 17, to the orchard.
"To me Fritz (Gusmer) is a tradition to our community," said Spratley. "Everybody knows him."