Article 81 - Food Preparation and Food Service Establishments
Proposed Rules: Closed to Comments
Statement of Basis and Purpose
This repeal and reenactment of Chapter 6 of Title 24 of the Rules of the City of New York is issued according to §§556 and 1043 of the New York City Charter (the “Charter”), §17-324 of the Administrative Code of the City of New York, and Article 89 of the New York City Health Code:
- Section 556 of the Charter authorizes the Department of Health and Mental Hygiene (the “Department”) to regulate all matters affecting health in the city of New York.
- Section 1043 of the Charter gives the Department rulemaking powers.
- Section 17-324 of the Administrative Code authorizes the Commissioner to “make such rules as deemed necessary” for enforcement of Subchapter 2 (Food Vendors) of Chapter 3 (Licenses and Permits) of Title 17 of the Administrative Code.
- Article 89 (Mobile Food Vending) of the New York City Health Code refers to rules to be promulgated by the Commissioner in Chapter 6.
Background of Proposed Rules
At a meeting on December 16, 2008, the New York City Board of Health repealed and reenacted Article 89 (Mobile Food Vending) of the New York City Health Code, as part of a comprehensive review of all Health Code provisions. Article 89 was reorganized, obsolete provisions were repealed, and new provisions were adopted to reflect Department practice and the regulatory environment. The recodified Article 89 became effective on January 1, 2010. Several provisions in the recodified Article 89 reference the rules that are applicable to mobile food vending in Chapter 6 (Food Units) of Title 24 of the Rules of the City of New York. These rules are therefore being amended to conform to Article 89 and enable better implementation of this article.
Overview of Proposed Rules
Because of the significant number of changes, and in an effort to provide more clarity, the Department is proposing to repeal the entirety of Chapter 6 and replace it with a new set of renumbered and amended rules. The major changes in the proposed new provisions can be summarized as follows:
- Classification scheme for mobile food vending units. The proposed rules classify units according to the kinds of operations (processing or non-processing), kinds of foods served (potentially hazardous requiring temperature control for safety or not potentially hazardous), and whether or not foods are prepackaged. The classifications (A through E) will determine the kind of equipment required.
- Commissaries. The proposed rules would allow for and describe requirements for alternatives to commissaries for Class D and E carts (non-processing carts, such as hot dog, coffee and fruit/vegetable carts, green carts). These storage and cleaning facilities may hold up to 4 carts, and would have to meet basic sanitary requirements. The permittee would have to get Department approval for use of a facility that is an alternative to a commissary, but the alternative facility would not have to hold its own permit.
- Size of mobile vending units. The proposed new rules would limit cart size to 5’x10’-- taking into account sidewalk clearance and pedestrian safety, as well as the existing stock of carts.
- Pre-permit inspection appearance by permit holders. The proposed new rules would compel permit holders to appear for pre-permit inspections in person: for full-term permittees this would require an appearance at least once every two years; for seasonal permittees this would require an appearance each year. This rule would implement a specific recommendation by the Department of Investigation following its review of industry practices and illegally transferred or leased permits.
- Joint and severable liability for violations. Though authority already exists in Article 5 and Article 89 of the Health Code for the Department to issue notices of violations (NOVs) to permit holders, the proposed new rules would clarify that licensees must accept service of NOVs on behalf of permit holders, and that the Department would perfect personal service of NOVs to permit holders by mailing permittees copies of the NOVs. In other words, personal service of NOVs, as described in the proposed rules, would meet all legal requirements.
Description of Proposed Rules
The proposed new provisions of Chapter 6, and how they differ from the current provisions of Chapter 6, are described as follows.
§6-01 Scope and applicability.
This section is substantively the same as current §6-01 (b).
This section is new and defines terms used throughout the Chapter. Most notably:
- “Mobile food commissary or other facility approved by the Department” describes a facility other than a commissary where Class D and Class E mobile food vending units (see newly added section 6-03) may be cleaned and stored when not used for vending. The Department recognizes that all mobile food vending units do not need to be stored and cleaned in commissary facilities in order to satisfy public health concerns. Therefore, for Class D and Class E units, these alternate facilities are reasonable, since these units do not require the same level of servicing as do Class A, B and C units on which potentially hazardous foods are prepared and held. The facilities must provide basic sanitation, plumbing, a source of potable water, and drainage; and must not create a nuisance. However, no food would be permitted to be stored in such facilities.
- The section includes the term “processing” as defined in the State Agriculture and Markets Law §251-z-2 (4).
- The term “pre-permit inspection” is defined to include several instances that require the permittee or permit applicant to bring in the mobile food vending unit for an inspection by the Department.
§6-03 Mobile food vending unit classifications.
This section is new and classifies units as Classes A through E according to:
- The kind of operations (processing or non-processing);
- The kinds of foods served (potentially hazardous requiring temperature control for safety or not potentially hazardous), and
- Whether or not foods are prepackaged.
The new classifications would determine the kind of equipment required for each unit, as specified in Table 1 of §6-05. A summary of the new classifications is as follows:
- Class A: Prepare and process raw potentially hazardous foods, e.g., grilled or fried meats, eggs and poultry.
- Class B: Prepare and process potentially hazardous foods that are manufactured or pre-cooked, e.g., sandwiches, smoothies and soft-serve frozen desserts.
- Class C: Serve only intact, prepackaged potentially hazardous foods requiring temperature control for safety, e.g., prepackaged frozen desserts, prepackaged sandwiches and prepackaged presliced fruits and vegetables.
- Class D: Serve only non-potentially hazardous packaged or unpackaged foods that do not require temperature control for safety, e.g., brewed coffee and tea, donuts, soft pretzels, boiled frankfurters and other sausages.
- Class E: Green carts that sell only non-potentially hazardous unprocessed whole fruits and vegetables.
Permittees seeking Class A and B permits would be required to pay the $100 annual permit fee for a processing unit as prescribed in §17-308 of the Administrative Code, or as applicable, the fee for a temporary seasonal processing permit in accordance with §17-307 of the Administrative Code and Article 5 of the Health Code.
§6-04 Mobile food vending units: pre-permit construction and equipment requirements for all classes of mobile food vending units.
This section expands and provides detail for the more generally stated requirements in current §6-01, with respect to what materials and equipment will be approved for mobile food vending units. It is largely based on requirements applicable to other kinds of food service establishments, set forth in Article 81 of the Health Code and the US FDA Food Code, adapted to apply to mobile food vending. Its intent is to reduce the risk of food being contaminated by exposure to environmental contaminants, and to better protect food workers and the public.
§6-05 Mobile food vending units: equipment required for different classes of mobile vending units.
This section is new. The equipment required is related to the unit classifications, which are based on the kinds of processes and kinds of foods being processed on the unit. A chart included as Table 1 specifies the equipment required for each class of mobile food vending unit. These requirements are consistent with standards for those for temporary food service establishments set forth in Article 88 of the Health Code. Plumbing and water standards are based on those in Chapter 5 of the 2009 US FDA Food Code.
§6-06 Size of mobile food vending units.
This section is renumbered, and would amend current §6-01 (d). Administrative Code §17-307 (b)(1) authorizes the Commissioner to establish size and design standards for mobile food vending units.
The Department is proposing a maximum size limit of five feet in width and 10 feet in length for all mobile food vending units, other than those that are motor vehicles. The longer side of the unit would be required to be placed adjacent and parallel to the curb of the sidewalk. Currently, §6-01(d) limits the size of non-processing carts to four feet six inches in width (for units where the operator is within the unit) and six feet six inches in length. It does not limit the size of either processing carts or motor vehicles.
There is historical precedent for the Department’s regulation of the size of mobile food vending units. In 1978, §D22-19.0 of the Administrative Code went into effect. That provision of the Administrative Code limited the size of units to 10 linear feet, measured parallel to the curb on any sidewalk. While this limitation was repealed in the mid 1990’s, it remained in §89.09 (c) of the Health Code and was in effect until January 1, 2010, when Article 89 was repealed and recodified. The size limitations were repealed and not included in the revised Article 89 because the Department intended to include all specific size, design and equipment requirements in this Chapter of the Department’s rules. Also note that Administrative Code §20-465 (b) -- applicable to general merchandise sidewalk vending units -- limits these vendors to occupying no more than three feet in width (measured perpendicular to the curb) and eight feet in length (parallel to the curb).
The Department believes that limiting the size of non-motor vehicle sidewalk food units to no more than five feet in width by 10 feet in length is reasonable, and would readily enable such units to accommodate the equipment required for all mobile food vending units using public sidewalks, without unduly obstructing the public’s use of the sidewalks.
§6-07 Green carts.
This section is renumbered, but is substantively the same as current §6-01 (m)-(o). Reference to a “two-year phase-in period” after which vendors must pay $50.00 for a new or replacement umbrella for their green carts has been deleted as it was no longer applicable after June 2010.
§6-08 Facilities for servicing Class D and Class E mobile food vending units.
This section is new. The Department is authorized under Article 89 of the Health Code to adopt rules to approve facilities to service mobile food units that only vend pre-packaged non-potentially hazardous foods or whole fresh fruits and vegetables. (See, Health Code §89.03.) This new section, §6-08, would establish the rules for such facilities. Previously, all units were required to be serviced by permit-holding commissaries.
Anyone intending to use such a facility would have to certify that the facility holds any necessary permits and is in compliance with all applicable fire safety, zoning and building laws. At the Department’s request, the user would be required to provide documentation to support the certification. The rule is intended to prevent nuisances at such facilities, and maintain sanitary conditions on the units and at these facilities. However, consistent with Administrative Code §17-307 (c), only a commissary holding a permit issued pursuant to Article 81 of the Health Code may provide necessary services to five or more mobile food vending units of any class or to more than one mobile food vending unit vehicle. In addition, all mobile food vending units in classes A, B or C would still be required to be serviced at a commissary.
§6-09 Manufacturer or exclusive distributor lease agreements.
This section has been renumbered, and is substantively the same as existing §6-04, except that the model lease agreement and rider are no longer included in the rule. These agreements were authorized for a very brief period of time, in accordance with §17-314.1(d)(2) of the Administrative Code. They are only applicable to those holders of multiple permits who were eligible to hold such permits in 1995. The section authorizes the Department to maintain an approved model lease agreement format on its website and to provide copies of the forms on request. Agreements that were in effect will continue to be approved, but no new agreements are allowed.
This section has been renumbered, and its provisions are substantively the same as provisions in existing §6-05 with respect to identifying “A” violations.
§6-11 Inspections; permit issuance and renewal.
This section is new. It includes the requirements in current §6-01(c) for reinspection of damaged and repaired materially altered mobile food vending units that became effective in 2007, and includes additional requirements for pre-permit inspections and reinspections, as described below. The basis for those additions is also described in detail.
- It would clarify when the Department would accept late applications for renewals of permits and/or schedule late pre-permit renewal inspections.
a. Late applications: The Department will not accept late applications unless the applicant can show, and the Department can verify, that:
i. The applicant received tax or penalty clearances from an issuing agency late, and that was the result of the issuing agency’s delay, and
ii. Applications for tax and penalty clearances were submitted at least 60 days before the date of renewal of the permit.
b. Late inspections: The Department will not issue a permit unless the inspection is completed in a timely manner, unless:
i. The delay in inspection completion was the result of the Department’s delay in scheduling the inspection.
- It would require that applicants for new or renewal mobile food vending unit permits personally bring their mobile food vending units for pre-permit health inspections. Pre-permit inspections would take place when:
· A permit applicant is applying for a new permit,
· A permittee is applying for a renewal permit,
· A permittee wants to substitute a processing unit for a non-processing unit, or a non-processing unit for a processing unit,
· A permittee wants to obtain a replacement permit or decal for a decal or permit that is lost, stolen, or damaged, or for a unit that is damaged or materially altered, or
· A permit has been suspended and the permit decal removed, and a new decal is to be issued.
- At each pre-permit inspection, permittees would also be required to:
· Have photos of themselves and photos of their units taken to enable accurate photo identification, and
· Bring a form approved or provided by the Department that lists all of the individuals who will be allowed to vend from the unit and the permittee’s legal relationship to those individuals (e.g. employee, etc.).
- A new subdivision (e) emphasizes and repeats in these rules the provisions of Health Code §§5.13 and 89.13 (k) that holds permittees jointly and severally liable with the operators of the units for the safe and legal operation of the units.
Basis for timely applications and inspections:
There are no provisions in the Administrative Code for late submissions of applications or scheduling inspections, but the Department receives substantial numbers of delayed applications and many different excuses for delays in inspection completion. As a result, the Department proposes to clarify in which circumstances it will accept late applications for renewals of permits and or schedule late pre-permit renewal inspections, based on subsections in the Administrative Code.
The Administrative Code requirements are as follows: Administrative Code §17-310 (a) requires the applicant to submit a completed permit renewal application with sales tax payment clearances from the Department of Finance no later than 30 days before the existing permit expires; Administrative Code §17-317 (b) and §6-10 of these Rules also require payment of outstanding fines and penalties;
Administrative Code §17-307 (b)(2)(d) requires the permittee to have a pre-permit inspection by the Department no later than three months after an application is certified or accepted by the Department; it also requires that the mobile food vending unit must pass the inspection no later than six months after the permit renewal applicant has submitted a completed application.
Basis for pre-permit inspections:
City Charter §556 authorizes the Department to “supervise and regulate the food and drug supply of the city… and ensure that such businesses and activities are conducted in a manner consistent with the public interest and by persons with good character, honesty and integrity.” Recent investigations by the City’s Department of Investigation have disclosed fraud in a number of practices in the mobile food vending industry, including transfers of permits by deceased permittees, and the presentation of a single cart at multiple pre-permit inspections, followed by subsequent decal transfer. Requiring the appearance of the permit holder, as well as photographing the permittee and the unit at each pre-permit inspection, will help the Department determine whether the permit holder is aware of the condition of a mobile food vending unit, and is responsibly operating the unit or supervising its operation by employees.
Basis for list of approved individuals
Currently, when Department inspectors issue violations to a mobile food vending unit operator who is not the permittee, the Department also notifies the permittee in writing of such violations. Health Code §89.13(k) authorizes the Department to issue notices of violation directly to the permittee; the Code also identifies the “operator of a unit” as the agent of the permittee, and the “unit” as the place of business of the permittee. Since more responsibility is expected of permittees than of their agents with respect to safe operation of their mobile food units, it is reasonable to expect permittees to be available for pre-permit inspections and to be able to identify people selling or distributing food from their units. This provision implements §17-309(b)(1) of the Administrative Code.
Basis for joint and several liability
Health Code §5.13 makes any Department permittee responsible when agents or employees of the permittee commit any violations of the Health Code. Permittees who evade responsibility for operation of their mobile food vending units do not benefit the public health, and have no incentive to make sure their mobile food vending units are operated in compliance with the Health Code, the Administrative Code and these rules.
The Department believes that all of these provisions will further promote food safety because they will enforce Administrative Code requirements that permittees know who is vending food from their units, and will urge them to take steps to more closely supervise those individuals. Including joint and several liability in the rules gives extra notice to permittees of their responsibilities for notices of violation issued for unsafe or illegal operation of their mobile food vending units.
§6-12 Records of commissaries and other approved facilities.
This section is new. It would require commissaries to maintain records of mobile food vending units serviced at the commissary and would enable the Department to determine if commissary services are being regularly provided. It, too, implements a recommendation of the Department of Investigation intended to address fraudulent practices.
In some cases, the Department of Investigation has reported, permittees purchase letters from commissaries and present them at Department pre-permit inspections to show that a specific mobile food vending unit cart or vehicle receives what are in fact non-existent services at a specific commissary. It is in the public’s interest that mobile food vending units, particularly those that prepare and sell potentially hazardous foods, are properly serviced at least daily at a commissary. Article 89 of the Health Code and Subpart 14-5 of the State Sanitary Code require that certain services be provided at commissaries, including, most importantly, daily cleaning of the unit and its utensils; provision and preparation of food obtained from approved sources; and safe disposal of liquid and solid wastes.
§6-13 Disabled veterans mobile food unit vending permits.
This section is new. It would establish procedures for issuing permits to disabled veterans for mobile food vending on sidewalks surrounding Department of Parks and Recreation property, in accordance with applicable provisions of General Business Law §35-a.
§6-14 Government agency and charitable organization exemptions.
This section is renumbered and retitled, but is substantively the same as former §6-03 (Exemption of governmental agencies from limitation on number of mobile food vending unit permits).
This section is renumbered, but it is substantively the same as current §6-01(n). It authorizes the Commissioner or a designee to exercise discretion in modifying requirements of the Chapter in cases where compliance would result in practical difficulty or unusual or unreasonable hardship. It also allows the Commissioner to impose conditions upon granting such modifications so that public health is not compromised.