Stop #2, CLOSED

[Photograph: Robyn Lee]

This is the story of a small business owner and the time she lost a day's earnings to the Department of Health. The food vendor, who sells at a popular market in New York, found herself with $400 worth of tickets for two food safety violations—and a day in court to pay her fine.

In a recent interview with New York Magazine, Mayor Michael Bloomberg removed all doubt about one of the motivations behind his initiative for a restaurant health letter grade system:

[The] public [is] overwhelmingly in favor. And the number of cases of salmonella in hospitals declined something like 14 percent. People say we're just doing it for the money raised by the fines—no, but if we don't get those moneys we're gonna have to raise your taxes, because we do need the money from someplace.*

* Emphasis added.

Mobile food vendors don't receive letter grades from the DOH—yet. But they always face the looming prospect of random inspections, for which they can receive fines between $200 and $2,000 per violation. Given the high price of food vending permits and street vending's paper-thin profit margins, just one ticket is enough to seriously disrupt a vendor's ability to keep their business afloat.

In the past we've reported on the disconnect between real food safety practices and regulations the DOH requires all restaurants and street vendors to follow. Whenever we talk to food industry professionals about food safety, we hear two common threads. One is a concern about whether the DOH understands how a restaurant can realistically keep food safe while serving customers in a timely fashion. The other is a desire to know why regulations are the way they are, and why certain violations receive the fines that they do. The DOH is notoriously tight-lipped about both of these matters.

Do the DOH's letter grades and punitive fines actually improve food safety? Do they educate street vendors and restaurants about improving food safety? Here is one account to help you decide, in the vendor's own words.

As with previous food business we've talked to, the vendor would only speak under promise of anonymity for fear of DOH retaliation.

What did you get a ticket for? We got two violations. One was for leaving our ice scoop in an ice bucket and the other was for a pair of tongs hanging on the side of a box. Each ticket cost $200, but they didn't tell us the amount of the fine until we appeared at a tribunal for our testimony.

Why can't you leave your scoop in the ice? Because if you have been touching the ice scoop you could potentially get germs and bacteria in there. The ice goes into our drinks.

If you have germs on your hands, could they transfer to the scoop even if it were stored properly? Well you're supposed to be wearing gloves, which we were doing.

So are you supposed take off your gloves every time you use the ice scoop? No, you wear gloves, and you're supposed to change your gloves frequently. Every time you do something new you should change your gloves.

If you change your gloves every time do something new, and your hands are clean, do you think there is any real risk of transferring germs, even if the scoop is already in the ice? Does leaving it out of the ice protect it in any way? No. And the DOH wasn't hanging around to see if we were actually changing gloves and using the ice scoop. They just saw one thing and gave us the ticket.

What about the tongs? For the same reason of transferring germs, you need a separate container to hold your tongs. Even though our tongs weren't touching anything; they were just hanging there.

How frequently do you change your gloves? Oh, very often. And the thing is, you'll see employees at some businesses wearing gloves but you have no idea how often they're getting changed. The DOH says you should change them when they get "contaminated," but that is such a grey area!

Has anyone ever told you that they got sick from your food? No. And I think that most vendors are aware of those health issues and keep track of them. But the health inspector came during the busiest part of our whole day and just one time we forgot to take out that scoop, which cost us $200. Yes, there have to be rules in place for safety, but I think they're going overboard with their fines. They're not using money from the fines to educate vendors and restaurants about health and safety.

Did you know the health inspector was coming? No. Normally when the health inspector comes there's a little bit of notice, but not this time. It was our busiest time of the day. We had a huge line. So not only did we we have to stop service and make sure she could inspect everything; we also had to deal with angry customers waiting for their food. Then she went through her checklist: Does everyone have gloves and hats? Is all the food at the right temperature?

How long did she interrupt your service? This time not that long. But she went to every vendor at the market. A couple got shut down. One lost their right to sell at that space. At other markets the inspectors have been there all day. One time an inspector walked away with our paperwork—which we need to show in case we get inspected by someone else—and we had to chase after him, which took 20 minutes.

What happened after you received your tickets? Two weeks after receiving the ticket we got an official notice in the mail with the option to pay our fine on the phone, online, or at a tribunal, but the notice didn't say how much the fine would be for. We went to the tribunal in person in the hopes of getting a better response.

Did they ever explain what you did wrong? Did you have a chance to defend yourself? Not really. They just said, "the health inspector said you did X, Y, and Z wrong. Do you deny it, admit it, or want to give an explanation?" Those are your choices. You have the chance to provide evidence of your innocence, and you can request that the health inspector who gave the ticket appears at the tribunal, but they aren't obligated to. In any case we weren't going to lie, so we said yes, we did those things, and they won't happen again. Then they said, "well, you owe us $400." No food safety recommendations to keep this from happening again.

How long did the testimony take? About two hours for my partner and me. At bigger restaurants they can send employees or lawyers to this thing—they're very upfront about letting you have lawyers—but at this company it's just us. So we had to go.

Did they give any indication what the revenue from your fines would be used for? As far as I know, no. And the decision is final. You can't appeal. You have 30 days to pay the fine.

How much did those fines eat into your earnings? They basically wiped out our profit for the day. Those five hours at the market plus hours of prep time went towards paying the DOH.

Do you ever cut corners with DOH regulations? We try to stick to them. Sometimes we don't for the super-onerous ones. For example, you're not allowed to have side towels when you're working because of possible germ transfer. In theory that's fine. But have you ever worked in a kitchen? You need a towel to use as a potholder, when you take things out of an oven, and plenty of other things. Obviously if there's a spill of raw chicken and I need to wipe it up, I'm going to swap my towel out. We swap out towels really frequently. But if you get caught with one on your person, that's a violation. So if we know the DOH is coming, we make sure we don't have any side towels on our aprons.

Is there anything you wish you knew about the ticketing process? I'd like to know where the money is going.

Share Your Story

Do you have a story about the Department of Health or food safety in restaurants that you want to share? Share in the comments or email us at nyeditor@seriouseats.com. Anonymity will be honored if requested.

About the author: Max Falkowitz is the editor of Serious Eats: New York. You can follow him on Twitter at @maxfalkowitz.

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