Restaurant Law Blog

Wednesday, October 17, 2012

Is the NYC Department of Health Stealing From You?

The Department of Health has long been a thorn in the side of restaurant owners and even more so since the advent of Letter Grading. Take this last month alone, notable establishments such as Meatball Obsession and Kashmir's Dollar Burger, Mantao Chinese Sandwiches, and Effy's, among others, were temporarily closed for health code violations.

As owners are well aware, the NYC Health Code was recently revised to clarify “what is” and “what is not” a violation. Health Inspectors when conducting an inspection look for issues of concern and whenever they observe a possible violation, they are told to include it without their report. To create uniformity among violations and to quicken the inspection process, the Department of Health created a computer program which utilizes pre-determined templates of text that are automatically inserted into a violation’s description so as to expedite the on-site reporting and issuance of a Notice of Violation. Phrases such as “observed encrusted with old food” and “fresh mouse excreta” (among several others) are automatically inserted into the violation even though they do not necessarily reflect the facts or circumstances that were actually observed by the Inspector. Why does this matter?

Well, the Department of Health (generally), not the actual Inspector, through the use of these template text inserts, has chosen to testify in advance for its Inspectors before the OATH tribunal as to conditions which may not have actually existed. As an example, Section 81.27(c) of the health code requires that food contact surfaces be cleaned at a “frequency necessary to prevent the accumulation of encrusted food, mold, grease or other contaminants.” Inspectors often claim to have observe food remnant on these surfaces (i.e. knives, meat slicers, can openers, etc.) but rarely does an inspector conduct an actual examination of the surface to determine whether the food is “old” or “encrusted” as opposed to something from more recent use. This distinction is critical because Section 81.27(c) does not require food contact surfaces to be cleaned after each and every use. All that is required is that the surface be cleaned often enough to prevent the accumulation of encrusted food, etc. Thus, if you finish chopping carrots and then walk away for a moment without first cleaning the knife, that is not a violation although many Inspectors would argue otherwise.

Likewise, the phrase "fresh mouse excreta" is referenced in every violation where mouse droppings are found to be present. Admittedly, the presence of old mouse droppings is still a violation of the health code's sanitary provisions, but it is not evidence of an active rodent infestation which cares with it higher condition levels, more points and consequently more fines. Often owners take extraordinary steps to eradicate pest infestations and do so successfully but that does not mean that all hidden locations where mice once occupied are easily accessible and able to be cleaned. Thus, when an inspector comes in several months later and removes a back panel from say, a condenser unit of an ice machine in the basement, and discovers mouse droppings – to the inspector the droppings are fresh because the DOH said they were ahead of time.

 


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