Grading of Mobile Food Vending Units (Amendments to the Chapter 6 of Title 24 of the RCNY)

Adopted Rules: Closed to Comments

Effective Date: 
Monday, December 10, 2018
Agency:
Download Copy of Adopted Rule (.pdf): 
 
 

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.