Restaurant Law Blog

Thursday, October 6, 2011

Significant Health Code Changes - Restaurant Owners Be Aware

The New York City Department of Health has proposed a significant amendment to the New York City Health Code in an effort to clarify what is required of restaurant owners.  An opportunity to comment on the proposed changes will be held on October 27, 2011 between 10:00 a.m. and 12:00 p.m. at the NYC DOH, 125 Worth Street, 3rd Floor, Room 331, New York, NY. 

Here are some of the notable proposed changes:

  1. Fresh and frozen shellfish, shelled or shucked shellfish (oysters, clams or mussels) will now have to be tagged with the name and address of the original shell stock processor or packer, and such tags must be  kept on the premises for 90 days from the date the shellfish was received by the establishment. 
  2. No longer will a new restaurant/bar be required to schedule a pre-permit inspection before it opens.  The proposed change will allow such establishments to being operating 22 days after having submitted its application for a food service permit.
  3. Shared kitchens are now permissible.  Commercial kitchens can be rented and leased by more than one food service establishment, provided that each business obtain its own permit to operate a food service establishment, and provided that the owner and the user keep and maintain an agreement that can be produced upon request.  No indication is made as to whether shared kitchens will be subject to more frequent inspections or who the violations will be lodged against. 
  4. Restaurant owners will now have to dedicate and actively use a single compartment sink for the washing of fruits, vegetables, meats, fish, etc.  One compartment of a multi-compartment sink can be designated for this purpose, provided that its sole use is for this purpose. 
  5. Restaurant owners will now also have to dedicate and actively use a sink for only hand washing purposes, and a sink for such purpose must be present in every food preparation, service and ware washing room (in addition to bathrooms), and a sink must be within 25 feet from all food preparation and service areas and cannot be obstructed by walls/doors, etc.  All bathrooms will need to have signs (in English and all necessary other languages) directing their employees to wash their hands after using the bathroom.  These signs will need to be posted above every hand washing sink.
  6. Food dispensing utensils must be stored in one of three ways at all times outside of active use:  (1) in the food with the handled extended out of the food; (2) separate, clean and dry; or (3) kept in a dipper well with running water. 
  7. Bare hand contact with food is now prohibited unless the food will be heated to the required temperature for immediate service.
  8. Food may no longer be cooked in a microwave unless cooked in a container that displays “microwave safe” icons or has the words “microwave safe,” or similar words, thereon. 
  9. People who are “non-essential” to food service operations are no longer permitted in food preparation or storage areas, with the exception of brief visits and tours so long as steps are taken to prevent contamination by visitors.
  10. When cooling food in cold holding equipment, you may not stack food, but rather you will be required to arrange the food in such a way so as to “provide maximum heat transfer through the container walls.” 
  11. Now conforming to the requirements of the State Sanitary Code, food service operators will be required to provide and ACTIVELY USE thermometers.  DOH inspectors always watch to see whether employees use thermometers during their inspection. 
  12. A significant change for the better, the health code will now include the use of time controls.  After cold holding, food can be kept for four hours without further temperature control, provided that after four hours the food has not reached 70 degrees.  Food must be labeled once removed from the cold with the time and temperature of such removal, and must then be recorded every two hours and labeled as such.  Perhaps the following label would suffice:

Time removed: ______________________________

Temperature at removal: ______________________

Temperature at 2 hours: _______________________

To be disposed or served by (time): ___________________________________________


  1. After hot holding, food will be able to be held at ambient temperatures for four hours.  Again, you will have to label the food as discussed above. 
  2. Hair restraints have always been required, but never as clear as this.  All food workers (excluding bartenders, hosts and wait staff) must wear caps, hats or hair nets.
  3. Hands will have to be washed before gloves are put on, and gloves must be changed after each use. 
  4. The DOH will now monitor fingernail length.  All food workers will need to keep their fingernails trimmed, filed and maintained so that the edges and surfaces are not rough and clean.  Fingernail polish is not permitted.
  5. Likewise, jewelry, outside of a medical alert bracelet or smooth wedding band (i.e. no engagement ring) can be worn on the arms or hands.
  6. Before, it was sufficient to have a supervisor on staff at all times that possessed a food protection certificate.  Now, all supervisors and managers are required to possess a food protection certificate or they cannot hold such a position.
  7. The DOH has attempted to clarify the requirements concerning holes and openings as they pertain to rodents, etc. First, the restrictions have been expanded from rodents and insects to “pests” to broaden their scope.  Additionally, before only holes or openings in the premises’ façade that were conducive to pest life were violations.  Now, the restriction would be that no openings, holes or gaps would be permitted which would allow for the free movement of pests (even if no pests are identified as being present). 
  8. All lights in food service or storage areas (including locations where utensils and equipment is stored) will need to be covered if the light is capable of shattering. 
  9. Pipes will need to be installed to prevent condensation from contacting food or equipment.  In other words, the pipes leading into or out of your low boy refrigerators or walk-ins, will now need to be covered with additionally piping or protective coverings to prevent the condensation that naturally builds up on such pipes, from touching the equipment itself. 
  10. Operators will now have to inspect all food and supply deliveries for pests.
  11. Operators will now be required to sign a contract with an exterminator (at least on a monthly basis) and be able to produce a copy of the contract upon demand by a DOH official.  Also, if a pest is observed (no indication as to whether “droppings” meet the observation requirement), then you will be required to retain an exterminator to remove such pests and be able to show invoices in support. 
  12. All exterior doors will now have to have an anti-rodent brush or a space no larger than ¼ of an inch to prevent pests from entering. 
  13. Garbage will need to be removed daily or held in tightly covered containers lined with bags.  Garbage placed on the curb also needs to be placed in tightly sealed containers, and such containers have to be cleaned after being emptied each time.
  14. Equipment and utensils will have to be cleaned and sanitized each time a different raw meat is touched, or when switching from raw to ready-to-eat food, or any anytime when the equipment or utensil MAY have been contaminated.  As an example, you will need to keep separate tongs for each type of food (beef, chicken, fish) on the grill and not use the same tongs once the food is cooked. 

James DiPasquale, Esq


Restaurant Law New York

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