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Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Background

             The Department of Health and Mental Hygiene (the 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, and enforces Article 81 (Food Preparation and Food Establishments) of the New York City Health Code (the Health Code).  Health Code §81.51 authorizes the Commissioner of the Department to promulgate rules for establishing a system for grading and classifying inspection results. Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of Title 24 of the Rules of the City of New York implements such a system, and consists of rules as well as three appendices:  Appendix 23-A (Food Service Establishment Inspection Worksheet); Appendix 23-B (Food Service Establishment Inspection Scoring Parameters-A Guide to Conditions) and Appendix 23-C (Food Service Establishments and Non Retail Food Service Establishments Penalty Schedule).

Reason for making changes

At its March 10, 2015 meeting, the New York City Board of Health amended Article 81, reorganizing and renumbering several sections. Renumbering the Health Code sections means that certain violations listed and described in Appendix 23-C must also be renumbered, and in a few cases the brief descriptions of violations updated to accurately reflect these amendments to the Health Code.  

Changes made   

All references are to the Health Code or, where indicated, to the State Sanitary Code (SSC), except as described below.  

The following is the list of the scored violations where the violation number and/or description must be changed:

 

Violation   Current                 Renumbered Citation

Code          Citation                   and/or Amended Description    

02A      81.09(a)(1) or (5)         81.09(c)(1) and 81.09(c )(5) – separates the violations for poultry and

poultry stuffings from those for stuffed and tenderized meats and meat stuffings      

02A      81.09(a)(2)                  81.09(c)(2) – pork heating temperature changed from 155 degrees F to 150 degrees F

02A      81.09(a)(3)                  81.09(c)(3)

02A      81.09(a)(4)                  81.09(c)(4)

02A      81.09(a)(6)                  81.09(c)(6)

02A      81.09(a)                      81.09(c) – other food heating temperature changed from 145 degrees F to 140 degrees F

02C     81.09(a)(7)                   81.09(d)

02D      81.09(a)(10)               81.09(d)(2)

02E       81.09(g)(5)                 81.09(f)(5)

02F       81.09(d)                     81.11

02G      81.09(c)                      81.09(a)(3)

02G      81.09(b)                     81.09(a)(2)

02I        81.09(f)                      81.09(e)(2)

03B      81.04(c)                       same – adds term “required” to describe shellfish tags

03C     81.04(c)                       same – deletes violation for “source of eggs”

03E      SSC14-1.121               NYCHC 141.13  

03E      81.20(d)                      81.20(c) – spelling error “impropse” corrected to “improper”

03F      81.07(K)                      81.07(k) – lower case subdivision referenced

03G      81.07 (a)(5)                81.07(a)(4)

04C     81.07(J)                       81.07 (j) – lower case subdivision referenced

04E       81.23(d)(3)                same  – deletes pesticides not properly “stored” and moves to 4E below;

04E       SSC14-1.60              deleted; duplicates a general violation 08C  

04H     81.07(a)(3)                  81.07 (a)(2)

04J      81.09(h)                       81.09(g) – deletes “used”)

05A      81.09(b) and (c)          81.09 (b)

05H     81.29(a)                       81.29

06B      81.13(g)                       same – adds “e-cigarettes” to smoking prohibition for food workers

06D     81.27(c)                       81.27(b)

06F      81.27(d)                       81.27(c) 

08B      81.24(a)(1)                  81.24(a)

08B      81.24(b)                      81.24(c)

08C     SSC14-1.60 (e)             81.23(d)(4)

08C     81.23(e)                       81.17(g)

09B      81.09(g)                       81.09(f)

10B      81.20(c)                      81.20(b) – term “maintain” corrected to read “maintained”

10E      SSC14-1.44                81.18(a)

10H     81.29(a)(1)                  81.29(a)

10H     81.29(a)(2)                  81.29(a)

10H     81.29(a)(3)                  81.29(b)(1)

10H     81.29(a)(4)                  81.29(b)(2)

10H     81.29(a)(2)                  81.29(a) – test kit for manual/chemical sanitizing

10H     81.29(a)(4)                  81.29(b)(2) – test kit for mechanical/chemical sanitizing

10I       SSC 14-1.110(e)         81.07(o)

In the list of unscored violations, a new violation code 22G containing a penalty for violations of Administrative Code §16-329 (c) which prohibits use of expanded polystyrene single service articles, is being added.   

One person commented on the brief descriptions of the violations during the comment period for this Rule, but no changes have been made to the penalties originally published or to the violations as described.  

In addition, the original publication of Appendix 23-C in June 2014 indicated, in the Statement of Basis and Purpose, that 

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 against food service establishments. There are violations listed in Appendix C, however, that are cited more broadly than just against food service establishments.  Examples include failing to prevent 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 proscribed for these violations … will apply in all notices of violation adjudicated at the Health Tribunal and not just when the respondent is a food service establishment. 

(emphasis added) 

However, a statement of this intent was not explicitly included in the published tables at that time. To  further clarify that penalties listed for violations of Article 3 of the Health Code must be applied to all sustained violations that are adjudicated at the OATH Health Tribunal, not just those cited and issued to food service establishments, a note to this effect is now being added to Appendix 23-C. 

The amendments are as follows.

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this Department, unless otherwise specified or unless the context clearly indicates otherwise.

Deleted material is in [brackets]; new text is underlined.

 

 

Effective Date: 
Sat, 08/08/2015

Proposed Rules: Closed to Comments (View Public Comments Received:1)

Agency:
Comment By: 
Friday, May 15, 2015
Proposed Rules Content: 


Statement of Basis and Purpose of Proposed Rule

 Background

             The Department of Health and Mental Hygiene (the 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, and enforces Article 81 (Food Preparation and Food Establishments) of the New York City Health Code (the Health Code).  Health Code §81.51 authorizes the Commissioner of the Department to promulgate rules for establishing a system for grading and classifying inspection results. Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of Title 24 of the Rules of the City of New York implements such a system, and consists of rules as well as three appendices:  Appendix 23-A (Food Service Establishment Inspection Worksheet); Appendix 23-B (Food Service Establishment Inspection Scoring Parameters-A Guide to Conditions) and Appendix 23-C (Food Service Establishments and Non Retail Food Service Establishments Penalty Schedule)

Reason for making changes

At its March 10, 2015 meeting, the New York City Board of Health amended Article 81, reorganizing and renumbering several sections. Renumbering the Health Code sections means that certain violations listed and described in Appendix C must also be renumbered, and in a few cases the brief descriptions of violations updated to accurately reflect these amendments to the Health Code.

Changes proposed   

All references are to the Health Code or, where indicated, to the State Sanitary Code (SSC), except as described below.  

The following is the list of the scored violations where the violation number and/or description must be changed:

Violation   Current                 Renumbered Citation

Code          Citation               and/or Amended Description    

02A      81.09(a)(1) or (5)         81.09 (c)(1) and 81.09 (c)(5) – separates the violations for poultry and

poultry stuffings from those for stuffed and tenderized meats and meat stuffings      

02A      81.09(a)(2)                  81.09(c)(2) – pork heating temperature changed from 155 degrees F to 150 degrees F

02A      81.09(a)(3)                  81.09(c)(3)

02A      81.09(a)(4)                  81.09(c)(4)

02A      81.09(a)(6)                  81.09(c)(6)

02A      81.09(a)                      81.09(c) – other food heating temperature changed from 145 degrees F to 140 degrees F

02C     81.09(a)(7)                   81.09(d)

02D      81.09(a)(10)                81.09(d)(2)

02E       81.09(g)(5)                 81.09(f)(5)

02F       81.09(d)                     81.11

02G      81.09(c)                      81.09(a)(3)

02G      81.09(b)                      81.09(a)(2)

02I        81.09(f)                      81.09(e)(2)

03B      81.04(c)                      same – adds term “required” to describe shellfish tags

03C     81.04(c)                       same – deletes violation for “source of eggs”

03E      SSC14-1.121               NYCHC 141.13   

03E      81.20(d)                      81.20(c) – spelling error “impropse” corrected to “improper”

03F      81.07(K)                      81.07(k) – lower case subdivision referenced

03G      81.07(a)(5)                  81.07(a)(4)

04C      81.07(J)                       81.07(j) – lower case subdivision referenced

04E      81.23(d)(3)                  same  – deletes pesticides not properly “stored” and moves to 4E below;

04E      SSC14-1.60                 deleted; duplicates a general violation 08C  

04H     81.07(a)(3)                   81.07(a)(2)

04J      81.09(h)                       81.09(g) – deletes “used”)

05A     81.09(b) and (c)            81.09(b)

05H     81.29 (a)                      81.29

06B      81.13(g)                      same – adds “e-cigarettes” to smoking prohibition for food workers

06D     81.27(c)                       81.27(b)

06F      81.27(d)                      81.27(c) 

08B      81.24(a)(1)                  81.24(a)

08B      81.24(b)                      81.24(c)

08C     SSC14-1.60 (e)            81.23(d)(4)

08C     81.23(e)                       81.17(g)

09B      81.09(g)                      81.09(f)

10B      81.20(c)                      81.20(b) – term “maintain” corrected to read “maintained”

10E      SSC14-1.44                81.18(a)

10H     81.29(a)(1)                  81.29(a)

10H     81.29(a)(2)                  81.29(a)

10H     81.29(a)(3)                  81.29(b)(1)

10H     81.29(a)(4)                  81.29(b)(2)

10H     81.29(a)(2)                  81.29(a) – test kit for manual/chemical sanitizing

10H     81.29(a)(4)                  81.29(b)(2) – test kit for mechanical/chemical sanitizing

10I       SSC 14-1.110(e)         81.07(o)

 In the list of unscored violations, the only change is the addition of new violation code 22G containing a penalty for violations of Administrative Code §16-329 (c) which prohibits use of expanded polystyrene single service articles.

 

The authority for these rules is found in §556 of the New York City Charter and §81.51 of the New York City Health Code (the Health Code).

 

 

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose

 

Statutory Authority 

The authority for these rules is found in §§556, 558 and 1043 of the New York City Charter and §81.51 of the New York City Health Code (the Health Code).

 

Introduction

            The Department of Health and Mental Hygiene (the 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 has amended 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 §558(e) of the Charter, in 1971 the Board of Health adopted Article 7 of the Health Code containing provisions for operation of an administrative tribunal within the Department to enforce the provisions of the New York City 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 OATH has operated the Health Tribunal, which is where 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 sustained. 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 Department believes that having fixed penalties at the Health Tribunal will similarly 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.   In reviewing the published version, an error in the citation for scored violation code 10E was corrected, and the original citation to Health Code §81.18(a)(3) was amended to reference State Sanitary Code §14-1.44.

 

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 the 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, have been amended to reflect this repeal and the fact that the Health Tribunal is now at OATH and is no longer operated by the Department.  The definition of “notice of violation” has been 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.

 

The amended rule is as follows.

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this Department, unless otherwise specified or unless the context clearly indicates otherwise.

 

 

Effective Date: 
Fri, 07/18/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose

 

Statutory Authority

 

The authority for these rules is found in §§556, 558 and 1043 of the New York City Charter and §81.51 of the New York City Health Code (the Health Code).

 

Introduction

            The Department of Health and Mental Hygiene (the 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 has amended 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 §558(e) of the Charter, in 1971 the Board of Health adopted Article 7 of the Health Code containing provisions for operation of an administrative tribunal within the Department to enforce the provisions of the New York City 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 OATH has operated the Health Tribunal, which is where 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 sustained. 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 Department believes that having fixed penalties at the Health Tribunal will similarly 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.   In reviewing the published version, an error in the citation for scored violation code 10E was corrected, and the original citation to Health Code §81.18(a)(3) was amended to reference State Sanitary Code §14-1.44.

 

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 the 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, have been amended to reflect this repeal and the fact that the Health Tribunal is now at OATH and is no longer operated by the Department.  The definition of “notice of violation” has been 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.

 

The amended rule is as follows.

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this Department, unless otherwise specified or unless the context clearly indicates otherwise.

 

Effective Date: 
Mon, 07/07/2014

Proposed Rules: Closed to Comments (View Public Comments Received:4)

Agency:
Comment By: 
Tuesday, April 29, 2014
Proposed Rules Content: 

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).

 

Introduction.

            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.

Subject: 

Proposed resolution to amend Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of Title 24 of the Rules of the City of New York to add a new Appendix C with fixed penalties for adjudicated violations and to change the name of the former Administrative Tribunal to the Health Tribunal.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th St 14th Floor, Room 14-43
Queens, NY 11101
Contact: 

Roslyn Windholz at (347) 396-6078/6116

Download Copy of Proposed Rule (.pdf):