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Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose

 

Statutory Authority

Section 17-325.3 of the Administrative Code, as added by Local Law 108 of 2017, requires the Department to “establish and implement a system for grading and classifying inspection results for each vending vehicle or pushcart using letters to identify and represent a vending vehicle or pushcart’s degree of compliance with laws and rules that require such vending vehicle and pushcart to operate in a sanitary matter to protect public health.” That section also requires that the system be consistent with the letter grading system established for restaurants in section 81.51 of the New York City Health Code where practicable. Moreover, section 17-324 of the Administrative Code provides authority for the Department to promulgate any rules deemed necessary for the proper implementation and enforcement pursuant to Subchapter 2 of Chapter 2 of Title 17 of the Administrative Code (Food Vendors).

Background

Since July 2010, pursuant to the mandate of section 81.51 of the New York City Health Code, the Department has been grading restaurants to provide information about how well the restaurants follow food safety requirements, as reflected by a grade of “A,” “B,” or “C” depending on the results of sanitary inspections. Inspections are conducted in prescribed cycles with a process in place for when a grade is to be posted based on the outcome of the inspection. This rule implements a substantially similar grading program for mobile food vendors, with certain exceptions as described below.

Mobile Food Vending Unit Grading Program Amendments

Amendments made to the mobile food vending grading program by this rule comprise of additional and revised definitions in section 6-02, new sections 6-16 to 6-21, and new appendices, which are described below.

§6-02 Definitions.

This section is amended to add or revise definitions of certain terms to be consistent with those used in the restaurant grading program (Chapter 23 of the Department’s rules) and the Health Code.

§6-16 Scoring mobile food vending unit inspections.

This section is new. It requires the Department to grade mobile food vending units to indicate their degree of compliance with the New York City Health Code, New York State Sanitary Code, and these rules. It also provides for assessment of points for certain violations for the purposes of grading. 

§6-17 Letter grading.

This section is new. It provides for a system of assigning letter grades of either “A,” “B” or “C” to mobile food vending units. This system is the same as is used for restaurants: a score of less than 14 points earns an “A” grade, a score between 14-27 points earns a “B,” and a score of more than 27 earns a grade of “C.”

§6-18 Intervals between inspection cycles.

This section is new. It describes the time intervals in various phases in an inspection cycle applicable to mobile food vending units. Notably:

  • Initial inspection commencing a new cycle will be conducted after about a year from the previous initial inspection if in that previous initial inspection the unit earned 0-13 points.
  • Initial inspection commencing a new cycle will be conducted 150-210 days from the reinspection in the previous cycle if at any inspection during that previous cycle the unit earned between 14 and 27 points, and did not earn more than 27 points at any inspection in the same cycle.
  • Initial inspection commencing a new cycle will be conducted 90-150 days from the final inspection in the previous cycle if at any inspection during the previous inspection cycle the unit earned a score of more than 27 points.

This section also describes the inspection cycles under certain other circumstances, such as after closure of a unit or where the operation of the unit poses an increased risk to public health.

§6-19 Posting letter grades.

This section is new and prescribes a system for posting letter grades. Notably:

  • If a unit receives an “A” at the initial inspection (0-13 points), the Department will post the A grade on the unit at the inspection.
  • If a unit scores 14 or more points and thus does not earn an “A” at the initial inspection, no grade will be posted and the Department will reinspect the unit seven or more days later.
  • If, at the reinspection, a unit receives an “A” (0-13 points), the Department will post the “A” on the unit at the reinspection.
  • If a unit scores 14 or more points at the reinspection, the Department will post a “grade pending” card on the unit until the summons is adjudicated at OATH. Alternatively, the unit’s operator may choose to bring the unit to the Department and have the grade of “B” or “C” earned at the reinspection posted on the unit instead of a “grade pending” card.[1] A unit with a “grade pending” will be required to post its final grade after a final decision by OATH.

§6-20 Position of grade cards on mobile food vending units; tampering prohibited.

This section is new. It requires the Department to post letter grades or “grade pending” cards on top of the permit decal and prohibits the removal, obstruction, or defacing of a decal or letter grade once it has been posted on the unit.

§6-21 Location sharing.

This section is new. It authorizes the Department to install a location sharing device on each mobile food vending unit for the purposes of inspection and grading.

The Department took special care in its design of the location sharing component of the grading program to protect the privacy of individuals who work as mobile food vendors. The rule includes protective features and mandates to protect location information against unwarranted use or disclosure. Specifically, section 6-21  prohibits the Department from continuously tracking a unit’s location and limits the use of the location tracking device to enforcement of directly related laws and rules; requires that all location data be deleted within 24 hours and be protected during transmission and storage; ensures that the location sharing device identification number be different from the associated unit’s permit, decal or license number; and specifies limits on the data’s use and disclosure. With these protections, the Department believes that location sharing will not risk the privacy of mobile food vendors.

Appendices 6-A, 6-B, 6-C, 6-C-2 and 6-C-3.

These appendices are new.  Appendices 6-A and 6-B implement scoring of inspection results. Appendices 6-C, 6-C-2 and 6-C-3 are set out penalties for civil violation summonses for mobile food vending violations that are adjudicated and sustained at OATH, using a schedule similar to that of Chapter 23 Appendix C (Food Service Establishment and Non Retail Food Service Establishment Penalty Schedule) in the Department’s rules.

These new appendices replace the current penalty schedules for the same violations currently in OATH’s rules.

Other Amendments to Chapter 6

§6-03 Mobile food vending unit classifications.

This section is amended to re-letter and re-number the paragraphs with no substantive changes to the text.

§6-04 Mobile food vending units: pre-permit construction and equipment requirements for all classes of mobile food vending units.

This section is amended to delete “pre-permit” from the title and to add “and grade card” to the title of paragraph (3).

Paragraph (3) of subdivision (b) is also amended to require all mobile food vending units to have a permit decal space that is a flat, smooth metal surface, which is the best material for the permit decal adhesive.

Subdivision (f) is amended to clarify and extend the deadline for water tank upgrades, and include a new requirement for a mechanical or electronic device to allow vendors to monitor water levels.

§6-05 Mobile food vending units: supplies and equipment required for different classes of mobile food vending units. 

The section is amended to add a reference to the location sharing device that must be installed on each unit.

§6-06 Size and placement of mobile food vending units.

Paragraphs (1) and (2) of subdivision (a) of this section are amended to remove expired provisions related to the allowable sizes of units other than trucks.

§6-07 Green carts.

Paragraph (a) is amended to remove the requirement that decals be placed on two sides of a green cart and carves out an exception to the ban on decal removal to authorize the Department to remove them from mobile food vending units. Paragraph (b) is also amended to eliminate the requirement of a green cart umbrella.

§6-11 Inspections; permit issuance and renewal.

Subdivisions (d) and (h) are amended to delete the references to reinspection.

Subdivision (l) is also amended to allow for revocation or denial of a permit for failing to have or tampering with grade cards or location sharing devices.

 


[1] Unlike at a restaurant inspection, the Department will require operators that choose to post a “B” or “C” grade following a reinspection to bring the unit to the Department to post the grade because the vendor staffing a unit at the time of the reinspection may not be the permit-holder with authority to make the decision. The Department’s experience grading restaurants demonstrates that the preference is typically for the Department to post the “grade pending” card following a reinspection that does not result in an “A” grade rather than the B or C card. Accordingly, posting the grade pending card will be the default for mobile food vending grading and permit-holders who would prefer a letter grade will be able to arrange for it to be posted on the unit by the Department. 

 
 
Effective Date: 
Mon, 12/10/2018

Proposed Rules: Closed to Comments (View Public Comments Received:9)

Agency:
Comment By: 
Monday, July 9, 2018
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Introduction

At its meeting on March 16, 2010, the Board of Health amended section 81.51 of the New York City Health Code and authorized the Department of Health and Mental Hygiene (DOHMH) to establish a letter grading program for restaurants. The Board determined that providing restaurant grading information will inform consumer choice and will improve restaurants’ compliance with the Health Code and promote high food safety standards. Rules implementing letter grading for restaurants were promulgated in Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of the Department’s rules.

Since July 2010, the Department has been grading restaurants to provide New Yorkers with information about the results of sanitary inspections. A restaurant’s grade A, B or C depends on how well the restaurant follows food safety requirements.

Local Law 108 of 2017 requires the Department to extend the grading program to mobile food vending units. It requires the program to be consistent with the restaurant grading program where practicable. These proposed rules comply with those directives by amending Chapter 6 (Mobile Food Vending) of the Department’s rules.

Additional amendments are being proposed to Chapter 6 to update and clarify certain other provisions as described below.

Mobile Food Vending Unit Grading Program Amendments

Mobile Food Grading System

The proposed amendments create a program to grade mobile food vending units to indicate their degree of compliance with the New York City Health Code, New York State Sanitary Code, and these rules at the time of inspection. Section 17-325.3 of the Administrative Code, as added by Local Law 108, requires the Department to design and implement a program consistent with restaurant grading to the extent practicable. The restaurant grading program incentivized New York City restaurants to improve food safety practices and led to greater compliance with the New York City Health Code and New York State Sanitary Code, including a 41 percent drop in sanitary violations in fiscal 2017 from the peak in fiscal year 2012. As elaborated below, and as consistent with restaurant grading program as possible, the program incorporates a prescribed cycle of inspections that generate scores, a scoring system that determines the grade, and the process for posting grades at various points in the inspection cycle.

The scoring system that will determine the grade for mobile units is the same as for restaurants: a score of less than 14 points earns an “A” grade, a score between 14-27 points earns a “B,” and a score of more than 27 earns a grade of “C.”

The annual inspection cycle begins when a unit undergoes an initial inspection. If the unit receives an A grade, the Department will immediately post the A grade on the unit. If the unit fails to earn an “A,” no grade will be assigned and the Department must reinspect the unit seven or more days later. If, at the reinspection, the unit receives an A grade, the Department will immediately post the A grade on the unit. If the unit again fails to earn an “A,” a grade pending card will be posted on the unit by the Department while the unit appeals the grade to the Office of Administrative Trials and Hearings (OATH). (The unit’s operator may choose to post the grade of “B” or “C” earned at the reinspection instead of a grade pending card, in which case the unit must be brought to the Department for it to post the appropriate letter grade.[1]) A unit with a “grade pending” will be required to post its final grade following the opportunity for adjudication at OATH. This inspection scheme is the same for restaurants.

 

Locating Mobile Food Vending Units

Unlike restaurants, which exist at a fixed location, mobile units move and are not required to operate on a set schedule. If the Department cannot locate all of the mobile units that require grades, the grading program will fail; not every unit will be graded and the grades that are posted may not be current. The successful implementation of the mobile food vending grading program, and the ability to mirror restaurant grading as closely as possible, requires adhering to the prescribed inspection schedule and ensuring that accurate and current grades are posted and timely on all units. That necessitates the Department being able to find and inspect units across the City.  To accomplish this and to check for compliance with grade posting requirements, the Department requires each vending unit to be equipped with a location sharing device that will enable the Department to pinpoint the unit’s location when it is to be inspected.

The ability to locate a mobile food vending unit is necessary to implement the mobile food vending unit grading program.  If the Department cannot find a unit to conduct an initial inspection or a reinspection, that unit will not have a current grade. The Department’s historical data reveals that it currently is only able to locate and inspect approximately 80% of the units that have permits to vend food in the City. For about one of every five units, the Department has been unsuccessful at predicting where the unit can be found, based solely on information it has about each unit’s vending locations. The inability to locate units will undermine the purpose of a grading system if a significant number of units are not graded or are posting grades that are inaccurate or out of date, which could degrade the reliability of the mobile food grades and the public’s confidence in the program.  By requiring all units to install location sharing devices, the Department will be able to inspect and grade a sufficient number of units to ensure the integrity of the grading program.

Grading promotes high food safety standards by leveraging consumer purchasing power, which, in turn motivates vendors to comply with food safety rules and achieve A grades. That system -- harnessing consumer interest in A grades to motivate vendors to comply with food safety rules to promote high food safety practices to protect public health -- is only achieved if the grade are accurate and reliable. In order to conduct inspections and keep grades accurate and reliable, the Department must be able to locate the vending units.

Additional Mobile Food Vending Grading Amendments

Amendments related to grading include additional definitions in section 6-02 and new sections 6-16 to 6-21, using a scheme similar to the one in Chapter 23 of the Department’s rules for grading restaurants. New appendices 6-A and 6-B are being added to Chapter 6 to implement scoring of inspection results. Appendices 6-C, 6-C-2 and 6-C-3 set out penalties for civil violation summonses for mobile food vending violations that are adjudicated and sustained at OATH, using a schedule similar to that of Chapter 23 Appendix C (Food Service Establishment and Non Retail Food Service Establishment Penalty Schedule). These new appendices will replace the current penalty schedules for the same violations currently in OATH’s rules.

Other Proposed Amendments to Chapter 6

Amending paragraph (3) of subdivision (b) of section 6-04 to require all mobile food vending units to have a permit-decal space that is a flat, smooth metal surface, which is the best material for the permit decal adhesive.

Amending subdivision (f) of section 6-04 to clarify and extend the deadline for water tank upgrades, and include a new requirement for a mechanical or electronic device to allow vendors to monitor water levels.

Repealing paragraphs (1) and (2) of subdivision (a) of section 6-06 to remove expired provisions related to with the allowable sizes for units other than trucks.

Amending section 6-07(a) to remove the requirement that decals be placed on two sides of a green cart.

Amending section 6-07(b) to remove the requirement of a green cart umbrella.

Amending subdivisions (d) and (h) of section 6-11 to delete the references to reinspection.

Amending section 6-11(l) to allow for revocation or denial of a permit for failing to have or tampering with grade cards or location sharing devices.

Statutory Authority

Section 17-325.3 of the Administrative Code requires the Department to “establish and implement a system for grading and classifying inspection results for each vending vehicle or pushcart using letters to identify and represent a vending vehicle or pushcart’s degree of compliance with laws and rules that require such vending vehicle and pushcart to operate in a sanitary matter to protect public health.”  In addition, section 17-311 of the Administrative Code authorizes the Department to issues rules related to affixing permit plates and letter grades to mobile food carts, and section 17-324 provides authority for any rules necessary pursuant to the mobile food vending requirements in the Administrative Code.

 


[1] Unlike at a restaurant inspection, the Department is requiring operators that choose to post a “B” or “C” grade following a reinspection to bring the unit to the Department to post the grade because the vendor staffing a unit at the time of the reinspection may not be the permit holder with the authority to make the decision. Based on experiences in the preferences of restaurant owners, the Department proposes to immediately post the “grade pending” sign following a reinspection that does not result in an “A” grade as the default, and allow permit holders who would prefer a letter-grade to arrange for it to be posted on the unit by the Department. 

 
 
Subject: 

Proposal to adopt rules governing the grading of mobile food vending units as provided in section 17-325.3 of the Administrative Code of the City of New York. Additional amendments to update and clarify other provisions related to mobile food vending are also proposed.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101
Contact: 

Svetlana Burdeynik, (347) 396-6078, ResolutionComments@health.nyc.gov

Download Copy of Proposed Rule (.pdf):