Article 5 - General Permit Provisions
Proposed Rules: Closed to Comments
Statement of Basis and Purpose
This amendment to the New York City Health Code (the “Health Code”) is issued in accordance with §§ 556, 558 and 1043 of the New York City Charter (the “Charter”). Section 556 of the Charter provides the Department of Health and Mental Hygiene (the “Department”) with the authority to regulate all matters affecting health in the City of New York. Sections 558(b) and (c) of the Charter empower the Board of Health (the “Board”) to amend the Health Code and to include in the Health Code all matters over which the Department has authority. Section 1043 of the Charter gives the Department rulemaking powers.
Basis and purpose of the changes
1. Adding a new §5.04 re: operation without a permit.
The Department requests that the Board amend Article 5 of the Health Code to add a new §5.04, authorizing the Department to padlock and seal premises where businesses are operating without required permits. The term permit, as defined in §5.03(b) of the Health Code, includes licenses and registrations.
Several times a year, the Department identifies businesses operating without the permits required by the Health Code. These businesses include swimming pools and spas, pet shops, food service establishments, animal shelters, animal grooming and kennel facilities and commercial stables. The Department regards such businesses, which are unregulated and uninspected, as nuisances, inherently dangerous to life or health. The definition of a nuisance and the Department’s authority to order the abatement of a nuisance derive from New York City Administrative Code (“Administrative Code”) §17-142 et seq.
Currently, if the Department identifies an unpermitted business and determines that the operators of the business are unwilling to obtain the necessary permit, it orders the operators of the business to cease and desist operation. The Department also orders the owners of the building in which the business is located to take whatever measures may be necessary to prohibit the operation of the unpermitted business on their property. If the business continues to operate without obtaining a necessary permit, the Department schedules a hearing at the City Office of Administrative Trials and Hearings (OATH) Tribunal, where the business operator and property owner may show cause why the Department should not padlock and seal the premises, pursuant to the Department’s nuisance abatement authority under Administrative Code §17-145.
The proposed amendment to Article 5 will codify this current practice in the Health Code, providing notice to businesses of the likely consequences of operating without necessary permits or in violation of orders to cease and desist operation, and enabling the Department to continue acting expeditiously to protect public health. This remedy will be utilized only when the Department has conducted a thorough investigation and has exhausted less stringent measures to obtain compliance with permitting or other Health Code requirements, such as meetings, telephone calls or correspondence with the operator of an unpermitted business or the property owner.
2. Amending §5.05(d) re: requiring e-mail addresses for non-emergency communications.
Health Code §5.05(c) requires a permit application to contain all information required by the Department. In December 2011, as part of an extensive revision of Article 5 (“General Permit Provisions”) of the Health Code, §5.05(d) was amended to require permit applicants to provide in their applications for new and renewal permits an “[e]-mail address and other information to enable the Department to contact the permitted entity in an emergency.”
This addition was made in response to a comment received from the New York State Restaurant Association on earlier revisions to Article 81 (“Food Preparation and Food Establishments”) of the Health Code that stated:
We suggest that the Department develop a system to collect the email addresses of DOH permit holders, FSE owners and their agents. This system could be used [as] a vehicle for the DOH to disseminate important information regarding permit renewals, changes to the Health Code, public hearings and other important information.
The Department agrees with the New York State Restaurant Association that all permittees would benefit from e-mail notifications and should be required to provide e-mail addresses. Thus, the Department is proposing that the Board broaden Health Code §5.05(d) to allow the Department to collect and use e-mail addresses from all permittees to send them information about non-emergency matters, such as newsletters generally promoting food and environmental safety, proposed Health Code changes, and other issues of educational and technical interest to permittees in the many areas regulated by the Department. As required under applicable laws, the Department will continue to mail and personally serve letters denying issuance of new permits, Commissioner’s orders, notices of violation, and permit or license renewal applications; and will continue to publish proposed amendments to the Health Code.
E-mail is a medium that provides for the immediate and timely, but also cost-efficient, communication of educational materials, information on rule changes, and other important notices. Electronic communication conserves increasingly limited staff resources and saves considerable amounts of money in mailing and reproduction costs. Such communication aids the Department in protecting and promoting the health of all New Yorkers, and helps it foster productive working relationships with regulated businesses.
The Department’s Bureau of Child Care already uses electronic communication to notify permittees of proposed Health Code amendments as well as changes in policies, reporting requirements, and other information affecting a permittee’s operation of a child care service. The Bureau has required applicants for new and renewal child care service permits to provide “proof of the service’s ability to receive electronic communications” since September 2009, when the Board amended Article 47 of the Health Code. Health Code §§ 47.09(a) and (c) require e-mail addresses for the child care service’s education director and for one or more other persons designated by the service permittee to receive electronic communications from the Department.
Finally, the Department does not expect this proposed change to overly burden permittees and applicants for new permits. During the week of January 7, 2013, the Department surveyed applicants at the Citywide Licensing Center for Department restaurant permits and found that 57 of the 65 surveyed persons had an e-mail address; and that 49 had used both computers and mobile phones (n=39) to access e-mail for business communications during the past five days, or used either computers (n=5) or a mobile phone (n=1) for the same purpose. Although several persons said they had no interest in obtaining an e-mail address, others said that they could obtain one if they needed it, knew that they would be able to set up a free e-mail account with an internet service provider, and could access their e-mail through family or friends or at nearby public libraries if they were required to have an e-mail address.
Accordingly, the Department requests that the Board amend §5.05(d) of the Health Code to clarify that communication other than emergency messages may be conveyed by e-mail to permitted entities.
Statement pursuant to Charter §1043. The proposed amendments were inadvertently omitted from the Department’s FY 2013 Regulatory Agenda because the need for the amendments was not known at the time the Regulatory Agenda was promulgated.