Health Code Violations

The relatively new Department of Health restaurant inspection system has been the source of constant anxiety among restaurant owners in New York City.  As a result, a group of restaurateurs has brought suit against the City in the Manhattan Supreme Court.

The group of almost 40 restaurant owners attacked the system in its entirety.  They claimed that instead of making it better for restaurants in the City, being subject to the scheme has been bad for business in general.  The penalty structure, which is widely accessible via the internet, designates fines ranging from $200-$1,000 for listed violations.  The plaintiffs claimed that these fines are assessed arbitrarily and for the sole purpose of raising revenue.  They also alleged that often times, due to the differing experience of inspectors, the fines that were originally assessed were then increased when the site was visited by an supervisor. The plaintiffs also claimed in their suit that the City Council overstepped their authority when passing parts of the charter legalizing the Department of Health regulations.  They asserted that the provisions were unconstitutional as the City Council did not have the authority to pass them in the first place.  The group also sought changes to the appeals process and $150 million in damages.

The New York Post recently reported that Health Department violations issued against restaurants were upheld 97% of the time in administrative hearings. While this statistic is certainly outrageous, it may not come as a surprise to anyone in the restaurant industry. One likely explanation for this has to do with the Department of Health’s “settlement offers” which allow restaurant owners to accept a lower fine rather than attempt to fight the violations. City Council Speaker Christine Quinn has already implemented changes that will lower fines for restaurant owners, and Mayor-elect Bill de Blasio has expressed the need for change in the existing inspection system. Hopefully, a true overhaul is underway.

A special “thank you” to the NYC Hospitality Alliance for their efforts to help restaurant owners by advocating for a “cure period” to allow businesses to correct certain violations before receiving a penalty from the following agencies: DOB, DCA, DOHMH, DOT, DEP, FDNY, DSNY. The cure period will apply to 83 different violations from all agencies; these 83 violations make up approximately 25% of all charges issued by the agencies.

The proposal presented by the NYC Hospitality Alliance is expected to be passed by the City Council and is estimated to save businesses more than $33 million

No matter how prepared you think you are for your restaurant’s Health Inspection, it is almost impossible to predict what types of violations you will be charged with when the inspector arrives.  As any restaurant owner knows, the difference between an “A” letter grade and a “C” letter grade is huge – both in terms of your ability to bring in customers and in the amount of fines.  Now, you can better prepare for these inspections by scheduling an on-site “Mock Health Inspection” conducted by inspectors from the NYC Hospitality Alliance. Many of our clients have raved about these mock inspections and have found them to be invaluable.

In association with NYC Business Solutions, the DiPasquale Law Group will be providing a free seminar for restaurant owners on issues relating to the New York City Health Code on December 4, 2013 between 2:00 p.m. and 4:00 p.m. The seminar will focus on (1) preparing for your inspection, (2) monitoring the inspection process, and (3) preparing for and defending yourself before OATH. You can register for the Seminar here.

Restaurant goers are always looking for the next new and exciting dining experience. It is no surprise, then, that “underground supper clubs” are becoming increasingly popular – not only in New York City, but throughout the world. An underground supper club allows diners to reserve a spot in someone’s private home where they pay the host for their meal.

Several companies have created websites to facilitate these intimate and unique gatherings. For example, EatWith is a company that was founded in 2012 in Tel Aviv and has quickly expanded in Europe, South America and now the United States. While other countries may be more accepting of this practice, health and sanitation laws in the United States present huge roadblocks for supper club enthusiasts.

With the Mayoral election coming up, City Council speaker Christine Quinn is doing her best to get the votes of restaurant owners throughout New York City. In recent months, Quinn proposed a reduction in fines for health code violations in restaurants, and it seems that she is delivering on her promise. Quinn just struck a deal with the Department of Health that is expected to cut fines by $10 million a year and add some consistency to the restaurant inspection process.

Prior to the recent changes, fines ranged from $200 to $2000 per violation, as determined by a hearing officer. Under the new fine structure, 60% of violations will be set to a $200 fine and the remaining violations will be reduced by 15-50% of the current fines. Additionally, restaurants that receive less than 14 points after the hearing on their initial inspection will not have to pay any fines for that inspection. And finally, if a restaurant gets a violation for a structural irregularity (e.g., an improperly placed sink), but can demonstrate that they had never been cited for the irregularity in the past, that violation will be waived.

81% of New York City adults reported seeing the letter grades in restaurant windows. 88% of those who see the letter grades consider these grades when making their dining decisions.  As discussed in an earlier blog entry, sites like www.Yelp.com are planning to add restaurant grades to its restaurant review sections, and the iPhone App “ABCEats” provides restaurant grades and inspection reports for all New York City restaurants. Thus, it is easier than ever for a patron to find out about a restaurant’s letter grade, making the importance of that “A” grade even greater.

What can you do to best prepare your restaurant for its Department of Health inspection?

In association with NYC Business Solutions, the DiPasquale Law Group will be providing a free seminar for restaurant owners on issues relating to the New York City Health Code on July 15, 2013 between 5:30 p.m. and 7:30 p.m.  The seminar will focus on (1) preparing for your inspection, (2) monitoring the inspection process, and (3) preparing for and defending yourself before OATH.  You can register for the course by either: (a) emailing an RSVP to fchavez@nycbusiness-solutions.com with your Full Name, Email, Phone and Business Information, or (b) by registering directly through NYC Business Solutions at:  http://www.nyc.gov/html/sbs/nycbiz/html/summary/courses.shtml

In the next several weeks, the popular review site www.Yelp.com will integrate the Department of Health’s letter grading system into its restaurant customer reviews. Potential patrons will now be able to read about a restaurant’s best dish alongside its inspection history – without ever having to go to the Department of Health’s own site.

While the Department of Health seems to be applauding this new development, restaurant owners are not so enthusiastic, and rightfully so. As anyone in the restaurant business knows, the letter grading system affects business in a big way. The difference between an “A” grade and a “C” grade can be the difference between a packed Saturday night dinner service and an empty dining room. With so many restaurant options to choose from in New York City, many customers feel they should not have to settle for less than the best. Customers do not have to consider that health inspections are often flawed; instead, they can simply look at a letter grade and make a quick decision: to dine, or not to dine?

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?