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Making the grade

Dead roaches count for fewer points than the live bugs. A carton of moldy tomatoes sitting on the basement floor is a red flag—even if those tomatoes belong to another tenant in the building. And arguing with a health inspector means automatic failure.

Such are the vagaries of restaurant letter grading, an initiative launched a little over a year ago in New York City, when the Department of Health and Mental Hygiene began issuing and requiring restaurants to post A, B or C grade cards reflecting their performance on sanitary inspections. This one-year anniversary is no cause for celebration among restaurateurs. From small mom and pops to industry icons like The Palm, there is pretty much universal dislike—and fear—of the system.

The tiniest misstep—dust on a compressor fan blade or a small hole near a pipe in the floor—are violations that can add up to a “B,” “C” or “grade pending” sign posted on the restaurant’s storefront. Anything less than an “A” can lead to lost revenue, stated Andrew Rigie, executive VP of the New York State Restaurant Association, during a NYC Restaurant Operators Roundtable hosted and organized by accounting firm Citrin Cooperman on September 19..

“Ninety percent of consumers approve of grade posting and 70 percent notice the grades on restaurant windows, while 88 percent consider grades when deciding where to eat,” he told the audience, citing a Baruch College survey. “A ‘grade pending’ sign is equally negative, as consumers perceive that as a failed grade,” Rigie added. What that rating really means is the restaurant is preparing for a hearing and is in the process of contesting the violations cited against it.

The Department of Health has done very little in the way of educating restaurant patrons on what the grades mean. New York City patterned its system after L.A.’s, which is based on 100 points. But in the Big Apple, there are 1,000 points written into the health and sanitation codes that can be deducted as a result of violations; it takes only 14 points to get a B; 28 points to earn a C. A few points can make the difference between an A and B, said Rigie, like resting the handle of the ice scoop in the bin of ice.

James DiPasquale, principal of DiPasquale Law Group, a firm that has represented many restaurants in inspection violation hearings, agreed with this assessment during his remarks at the Roundtable. Adding to the injustice, he pointed out that  “health inspectors are afraid to give out too many ‘As’; they have to be strict and picky because they’re concerned about their jobs. Plus, the administrative judges who sit for the hearings are not lawyers.”

DiPasquale shared some tips to help operators through the inspection ordeal.

• Go through and self-inspect beforehand, using the information on the Health Department’s site: http://www.nyc.gov/html/doh/html/rii/foodservice.shtml

• Always be prepared. Inspectors can pop in unannounced, before, during and after service, but you can set a time for the inspection.

• Educate employees about the health and sanitation codes.  

• Be nice. You can follow inspectors around, asking the reason for each violation they note, without being confrontational.

• Take photos during the inspection so you can prove your points in case of a hearing. The inspectors never take photos.

• Get familiar with Article 81 Food Preparation and Food Establishments from the NYC Department of Health. About 95 percent of possible violations are in that downloadable document.

• Get a letter from your landlord if you share basement space with other tenants.

• Make sure Food Protection Certificates are on the premises.

• Trust one or two employees with keys to all locked spaces, including offices. Preventing an inspector access to any room in the restaurant is grounds for automatic failure.

The New York State Restaurant Association initially lobbied against the grading system and continues to work with the Department of Health for reforms. A recent change is a built-in automatic reinspection so a restaurant has an additional chance to pass without paying more fines. Electronic hearings will make it possible for busy operators to protest violations online. And the Association is offering a 2½-day training program for restaurant employees and is pushing for increased training of inspectors.

At the end of October, another public hearing on the health code takes place, and Rigie is lobbying for revamps to make it easier to find what is—and isn’t—allowed. “Right now, we’re getting two to five calls a day from confused and irate operators,” he reported. “We’re hoping that Increased training will help reduce fines so the restaurant industry is no longer an ATM for New York City.”

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