Food Service Establishment Sanitary Inspection Procedures and Letter Grading (Chapter 23) - Fixed penalties
Proposed Rules: Closed to Comments (View Public Comments Received:4)
Statement of Basis and Purpose of Proposed Rule
The authority for these rules is found in §§556 and 558 of the New York City Charter and §81.51 of the New York City Health Code (the Health Code).
The Department of Health and Mental Hygiene (the Health Department) regulates food service establishments, which include a broad range of businesses and not-for-profit operations that provide food in individual portion sizes for consumption by members of the public. The Department is proposing to amend Chapter 23 to establish a schedule of fixed penalties for violations sustained against food service establishments and to update some definitions used in the Chapter.
Establishment of fixed penalties for food service establishment violations.
In accordance with S 558(e) of the Charter, the Board of Health established an administrative tribunal within the Health Department to enforce the provisions of the New York City Health Code (Health Code). By Executive Order No. 148 (June 8, 2011), the Mayor transferred this tribunal to the Office of Administrative Trials and Hearings (“OATH”). Since July 3, 2011 it has operated the Health Tribunal, which is where all violations issued to food service establishments, other than mobile food vending units, are adjudicated.
OATH’s rules for the Health Tribunal, found in Title 48 RCNY Chapter 6, (specifically 48 RCNY § 6-02) require it to impose fines and pecuniary penalties in accordance with Article 3 of the Health Code. Unless otherwise specified, Health Code §3.11 requires that there be a penalty of at least $200 and no more than $2000 whenever a violation of the Health Code, or other law enforced by the Health Department, is found to have occurred. Currently, the hearing examiners who adjudicate notices of violation at the Health Tribunal decide within these parameters what the penalty will be when they sustain a violation. At other City agencies’ administrative tribunals, including the Environmental Control Board at OATH where notices of violation issued to mobile food vendors are adjudicated, penalties are fixed by law and not left to the discretion of hearing examiners. The Health Department believes that similarly having fixed penalties at the Health Tribunal will promote consistency and fairness in decision making and provide predictability for those whose notices of violation are decided there.
Eventually the Department will be proposing rules fixing penalties for all violations that are adjudicated at the Health Tribunal. Chapter 23 is being amended first to add a new Appendix C fixing penalties for any violation that can be cited against a food service establishment on inspection because the majority of notices of violation heard at the Health Tribunal are issued to food service establishments. Some violations listed in Appendix C, however, are cited more broadly than just against food service establishments. Examples include failing to prevent or maintaining a nuisance in violation of Health Code §§3.07 or 3.09, or obstructing an inspection in violation of Health Code §3.15(a). The penalties prescribed for these violations will apply to all notices of violation of these provisions adjudicated at the Health Tribunal, regardless of whether the respondent is a food service establishment.
Amended definitions and references to the former Administrative Tribunal
Article 7 of the Health Code, which contained the procedural rules of the Administrative Tribunal when it was located within the Department, was repealed after its transfer to OATH. The definitions of “Administrative Tribunal” and “notice of violation” in §23-01 of Chapter 23, and the references to the Department’s Administrative Tribunal in §23-07, are being amended to reflect this repeal and the fact that Health Tribunal is now at OATH. The definition of “notice of violation” is being amended to be consistent with the definition in OATH’s rules at 48 RCNY §6-01, which currently reads:
Notice of Violation or “NOV” means the document issued by the petitioner to a respondent
which specifies the charges forming the basis of an adjudicatory proceeding before the Tribunal.