Mobile Food Vendors Subscribe to RSS - Mobile Food Vendors

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

 

Statement of Basis and Purpose

 

Statutory Authority

 

This repeal and reissuance of Chapter 6 of Title 24 of the Rules of the City of New York is in accordance with §§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 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

 

At a meeting on December 16, 2008, the New York City Board of Health repealed and recodified Article 89 (Mobile Food Vending) of the New York City Health Code, as part of a comprehensive review of all Health Code provisions. Article 89 was reorganized, obsolete provisions were repealed, and new provisions were adopted to reflect Department practice and the regulatory environment.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. Because of the significant number of changes, and in an effort to provide more clarity, Chapter 6 was repealed and has been replaced with a new set of renumbered and amended rules. These provisions and how they differ from the replaced provisions are described below. Changes made in response to comments received are discussed in the descriptions of the various sections.

 

Basis for the amendments

 

§6-01 Scope and applicability. This section is substantively the same as the provision replaced [§6-01 (b)].

 

§6-02 Definitions.

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.

 

In response to a comment that it appeared that the Department was allowing trailers to be used as a mobile food vending unit, the Department has substituted the term “truck” for “trailer” and “motor vehicle” in the definition of mobile food vending unit in subdivision (h) and in all sections where the term motor vehicle was originally used.

 

§6-03 Mobile food vending unit classifications.

This section is new and classifies units as Class A, B, C, D or 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.

 

Classification determines the kind of equipment required for each unit, as specified in Table 1 of §6-05:

·        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, vegetables and salads, 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. It should be noted that while a coffee cart will be considered a

·        Class D unit, ice containers, coolers or other equipment for safely holding dairy-based coffee lighteners such as milk, cream or half-and-half at or below 45 degrees F will be required

·        Class E:  Green carts that sell only non-potentially hazardous unprocessed whole fruits and vegetables.

 

Permittees seeking Class A and B permits will 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.

 

A unit that processes foods for service and also sells non-processed foods is required to have a processing permit.

 

Several persons submitting comments on the proposed rules requested additional examples of the kinds of foods that may be prepared and served by each class of unit. The Department has added examples to Table 1 in §6-05 to clarify that although Class D units are those that sell primarily foods that are not potentially hazardous, when potentially hazardous foods are sold, appropriate equipment is required to keep these foods in their manufacturer’s and Health Code required temperature ranges.

 

§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.

 

A provision has been added, consistent with Health Code §81.17(a) (which already prohibits the use of residential premises as a food establishment), that prohibits use of a mobile food vending unit pushcart or truck for sleeping or other residential purposes.

 

In response to comments several changes have been made:

In subdivision (b), the Department will allow covering of permit decals affixed to units where the vendors believe the decals require protection from the weather and physical hazards.  Vendors may use a clear Plexiglas cover that may be easily removed by an inspector during an inspection.

Subdivision (f) has been amended to reduce the water tank capacity for non-truck units that are required to carry potable water to a minimum of 10 gallons, instead of the 25 gallons proposed. Because the Department considers lack of potable water on units that are required to have such supplies an imminent health hazard and a basis for ordering the unit closed (see State Sanitary Code § 14-4.20), a requirement has been added for all units to install external gauges on water tanks on or after January 1, 2018 so that the vendor can readily see when water supplies are no longer adequate. Subdivision (g) has been amended to require that water pressure be constant and adequate, deleting the initially proposed requirement that pressure be at the specified level of 7 psi.

Subdivision (i) has been further clarified to require that some method of washing foods be provided in Class A and B units, whether by using a food grade colander in the ware washing sink or a compartment of a multi-compartment sink and taking measures to avoid cross contamination of food.

Subdivision (l) has been clarified to indicate that either mechanical or other means of holding potentially hazardous foods will be acceptable.

Subdivision (o) adds examples of appropriate overhead protection, drawn from the requirements for outdoor cooking in Article 81.

 

§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.

 

In response to comments, Table 1 has been further amended to indicate kinds of equipment and provides examples of the foods held, prepared and sold in each class of unit.

 

§6-06 Size of mobile food vending units.

This section is renumbered and amends former §6-01 (d). Administrative Code §17-307 (b)(1) authorizes the Commissioner to establish size and design standards for mobile food vending units.

 

A new maximum size limit of five feet in width and 10 feet in length is established for all mobile food vending units other than food trucks. The longer side of the unit must be placed adjacent and parallel to the curb of the sidewalk. Former §6-01(d) limited only 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 did not limit the size of either processing carts or food trucks.

 

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 units other than food trucks 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.

 

Several comments were received complaining about the growing size of carts. The Department believes that the size established in the regulations is an appropriate compromise between positions advocated by proponents of both smaller and larger units. In response to comments that it would be a hardship for current permittees to comply with the new size requirements, the Department is allowing additional time for compliance for renewing permittees.

 

§6-07 Green carts.

This section is renumbered, but is substantively the same as former §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 the “two-year” period 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, establishes the rules for such facilities. Previously, all units were required to be serviced by permit- holding commissaries.

 

Anyone intending to use such a facility must 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 food truck. In addition, all mobile food vending units in classes A, B or C would still be required to be serviced at a commissary.

 

Many comments were received indicating confusion about the requirements for “permitted” alternative facilities to commissaries, and stating that the requirements were onerous and defeated the purpose of allowing such alternative facilities. An attempt has been made to clarify these requirements and to indicate that the Department’s intent is that if an alternative facility to a commissary is to be used, the premises used to house such a facility must still comply with applicable building, fire, zoning, sanitation and other public safety rules and regulations, as would any structure. The Department is not requiring that an alternative facility hold a permit to operate as such, and will not be issuing such permits.

 

§6-09 Manufacturer or exclusive distributor lease agreements.

This section is renumbered, but is substantively the same as former §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.

 

§6-10 Violations.

This section has been renumbered, and its provisions are substantively the same as provisions in former §6-05 with respect to identifying “A” violations.

 

§6-11 Inspections; permit issuance and renewal.

This section is new. It includes the requirements in former §6-01(c) for reinspection of damaged and repaired materially altered mobile food vending units that became effective in 2007, and additional requirements for pre-permit inspections and reinspections, as described below. The basis for those additions is also described in detail.

 

1.    It clarifies when the Department would accept late applications for renewals of permits and/or schedule late pre-permit renewal inspections.

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.

Late inspections: The Department will not issue a permit unless the inspection is completed in a timely manner, unless the delay in inspection completion was the result of the Department’s delay in scheduling the inspection.

 

2.    It requires that applicants for new or renewal mobile food vending unit permits personallybring their mobile food vending units for pre-permit health inspections. Pre-permit inspections must 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.

 

3.    At each pre-permit inspection, permittees are 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.).

 

4.    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 has clarified in these rules in which circumstances it will accept late applications for renewals of permits and/or schedule late pre-permit renewal inspections, based on Administrative Code requirements, including

Administrative Code §17-310 (a) which requires the permit 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 which require payment of outstanding fines and penalties; and Administrative Code §17-307 (b)(2)(d) which 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 and requires the mobile food vending unit to 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

The Department’s practice in recent years has been to notify the permittee when Department inspectors issue violations to a mobile food vending unit operator who is not the permittee.  Health Code §89.13(k) authorizes the Department to issue notices of violation directly to the permittee or to the operator of the unit. The Health Code designates 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 requires commissaries to maintain records of mobile food vending units serviced at the commissary and will 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 food truck 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 establishes 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).

 

§6-15 Modification.

This section is renumbered, but it is substantively the same as former §6-01(n). It authorizes the Commissioner or a designee to exercise discretion in modifying requirements of this 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.

 

 

Effective Date: 
Thu, 04/11/2013