Grade Pending on Restaurant Grades

By MARCO POGGIO

Inside a little deli in the little Indian and Bengali enclave of Curry Hill, a Manhattan neighborhood in the East 20’s and 30’s, Mhamud Hasan, the owner, is talking to some friends at the entrance of his tiny store, standing at the doorway.

The deli, called “Dhaka” after the capital of Bangladesh, is really small. Two men standing next to each other would be enough to block anyone from passing through. The deli serves Bengali food, pre-made, since there is no kitchen, and many of the patrons are cab drivers in search for a little snack and a chat with the owner. Outside, yellow taxicabs line up empty near the curb.

On the front window facing 28th Street, a sign says “Grade Pending.” The sign is from the Department of Health and Mental Hygiene of the City of New York, which has inspected the place nearly two-months ago. The inspector found that the place had some cleanliness problems and the temperature inside the refrigerator was irregular.

Hasan said he received $6000 in fines and more than 25 points of violations of the Health Code of the department. He is appealing through the Office of Administrative Trials and Hearings, to overturn half of those fines and their consequent fines.

“My store was closed for thirteen days,” Hasan said, “now I can’t cover the rent.” His income varies between $12,000 and $16,000 per month, but his business is losing because of the letter grade posted on his door. The rent for that little space costs him $4660 per month. With insurance, electricity bills and sanitation to pay for, Hasan said, it became hard make ends meet; to the point that he had to rack up credit card debt and get loans from a bank and from friends.

Hasan, like many people in the food business, has complaints about the grading system and how the city applies it. Some deli and restaurant owners say that the grading is so finely calibrated that a few points off can push a restaurant from one grade to another. Others say charge it is just another way for the city to raise funds. Under new rules proposed in March, restaurant and deli owners will be able pay for a penalty-free consultation before their official inspection so they can get a sense of where their issues are and remedy them in advance.

According to the online portal of the Health Department and Mental Hygiene, which posts the inspection scores for all licensed restaurants in New York City, Dhaka Deli was fined for 77 points during a previous inspection, in January. Most of those violations concerned the temperature, the way the food was stored, and also the presence of live roaches; these are so-called “critical violations,” which are marked with a minimum of five points but can be higher, according the severity of the case.

Diners can consult the Health Department’s website anytime, and thanks to a phone app., they can see what violations a restaurant has when they walk by. However, most people simply trust the letter grade posted on the door. An A is an indication of cleanliness; a B is a place that could be cleaner, but could still be ok to dine in. A C is a turn off.

During a survey conducted by Baruch College in 2012, on behalf of the Health Department, 88 percent of the surveyed said to be taking into consideration the letter grade when they decide where to dine. The study surveyed 511 people, but it’s very likely to be representative of the population of New York City.

According to Dr. Mary Bassett, named Health Commissioner by Mayor de Blasio in January, “Restaurant letter grading began as a way to motivate restaurants to practice better food safety and allow the public to make more informed decision about where to safely dine.”

Yet nearly four years after the system came into effect in 2010, the majority of restaurant owners are all but skeptical letter grades are really making customers informed.

“What they claimed they are trying to do is to benefit the consumers,” said Matt Ward, 39, the owner of Paul’s Da Burger Joint, a popular restaurant in the East Village frequented by longtime New Yorkers, as well as many tourists and cops. “The problem with the system is that the public doesn’t understand the difference between an A and a B, or B and a C,” Ward continued, “It can be as simple as you ran out of soap in the men’s room.”

According to many business owners, the verdict of an inspection is often unpredictable, as many contingent factors might result in several violations and fines.

Steve Yan, 41, owner of Super Taste, a hand-pulled noodle restaurant on Eldridge Street, in Chinatown, explained the violations he received during a recent inspection. First, the cashier left a wet rag on a table after cleaning it. The Health Department inspector came in and saw it: five points of violation. Then, the inspector noticed some water under a sink used to wash vegetables: two points of violation. Next came the slicing machine, which Yan uses to cut the beef for his noodle soup, and that he cleans regularly. However, at the moment of the inspection, there were a few meat crumbles on the blade; the inspector saw them and gave Yan another five points of violation.

Yan said that after preparing a piece of beef, he put it inside the refrigerator. However, the meat did not cool down fast enough. At the time of the inspections, the meat had already been inside the walk-in fridge for two hours; but when the inspector checked, its temperature was above the 41 degrees prescribed by the Heath Code: that cost Yan seven more points of violation.

“It depends how lucky you are,” Yan said referring to the inspection. “If the inspector comes two minutes later, the cashier has put away the rag already, let’s take five points off: I already get an A.”

Yan said he has received a grade C for Super Taste during a past inspection. However, that has hurt his business only slightly. To most of his customers, who come from around the neighborhood, Yan said, the grading system does not mean too much.

“Chinese people mostly work in kitchens,” Yan said, “they know what’s going on,” adding to the skepticism of many operators in the hospitality industry, who think that the letter system tells little about food safety. Yan agreed the letter system could be useful to diners. “Just don’t make money out of it!” said Yan, referring to the $52 million restaurateurs paid in penalties in 2012.

“I know the city needs money,” Ward of Paul’s Da Burger Joint said. “If you told me now, once a year, you gotta write the city a $5000 check… keep the money. Just don’t bother me,” Ward said referring to the city. “It’s not the money. It’s the way you bother me for the money,” Ward added. “It’s like extortion.”

Ward said the city cannot admit to be looking for revenue and uses the grading system as a way to legally force restaurateurs to pay fines.

Restaurant operators claim that the letter system is unfair, because it does not take into consideration how complex as fast-paced an environment a restaurant could be, especially on Friday or Saturday nights. If an inspector comes into a restaurant before the service starts, or when there are only a few customers inside, there is a better chance things will be found in the right place.

But when a restaurant is at the peak of its business, it can happen that, for instance, some kitchen utensils are stored improperly and cutting board is cracked. That will be enough so jeopardize the chance of getting an A, and to get fined for several hundred dollars.

Skeptics of the grade system lament that the outcomes of the inspections are often too dependent on the inspectors’ interpretation of the Health Code.

Riccardo Rossetti and Patrizia Volanti are chefs of a well-known Italian restaurant in Williamsburg, Brooklyn, which they wished to keep anonymous to comply with their owner’s request. They said that, during their experience, they have seen inspectors interpreting regulations in divergent and often contradictory ways. Rossetti said the bulk of regulations put together by the Health Department lacks understanding of the way a restaurant works and the necessities it has.

The code responds to scientific observations made by doctors, who determined what are the parameters under which a food is safe to be cooked, served or stored.

A 14 percent drop of cases of salmonella, recorded by the Department of Health and Mental Hygiene if the City of New York between 2010 and 2013, has been sold to the public as one of the key accomplishments of the grading system, as well as one the main reasons it has been created. The public is easily persuaded that Heath Department regulations are solidly backed by science.

“It’s more bureaucracy than science, actually,” Rossetti said. “They [inspectors] read the labels and they check when you prepared that stuff, but I’ve never seen an inspector opening up a box and smell if it was fermenting.”

At times, inspections can be extreme; at least in they way violations are detected and quantified. Volanti said that to each fruit fly found inside the whole area of a restaurant correspond two points of violation. A cluster of seven of such tiny flies would cost the restaurant an A grade, plus fines.

Volanti explained that many fortuitous circumstances could cause a restaurant to receive a B or even C grade: a wet floor, a fruit fly, a sponge out of the sanitary solution, a bartender touching his eyes with bare hands. “We all know that this is happening in a restaurant,” Volanti said, referring to the people working in restaurants. The public is not aware of the reason behind a bad grade, she said.

Strict regulations did not impact only small business. Multi-million dollar operations got targeted as well.

Per Se, a famous Michelin-starred French restaurant located at 10 Columbus Circle, owned by Chef Thomas Keller, was inspected last February by the Health Department. The inspectors detected 42 points of violations, resulted in a C grade and several fines.

Per Se did not accept the grade and, like most of the businesses that can afford the process, fought the violations in the Health Tribunal, a division of the Office of Administrative Trials and Hearings of the City of New York.

The media department of Per Se, contacted on the phone several times, never returned any call and left requests for comments unanswered. However, Keller made available a press release on the restaurant’s website, in which he said he was able to overturn 25 points of violation. Some of the violations that were left in place concerned “a chef drinking water in the kitchen from an open container” a “leaky faucet/dusty fan guard” and “potatoes that were in the process of cooking in a pan of canola oil registered between 112 and 118 degrees, which is below the hot food recommended temperature of 140 degrees.” Keller explained that the temperature was intended to be kept lower than the standards to match a “classic French technique used for generations in kitchen around the world.” After the conclusion of the trial, Per Se was able to raise its grade to a B.

During the past four years, the letter grade system has gained the hostility of all kinds of food enterprises, from high-ranked uptown restaurants to unknown delis in remote areas of the city. Owners of popular restaurants feel targeted by the system because they have large revenues the city could prey on. Small business owners, on the other side, feel targeted because they are less defensible, they don’t have the money Per Se has to be able to afford fines and trials, and no one would even notice if their restaurants close down.

Some charge that the Health Department does not treat all businesses the same, that business owners who have been around for a long time might receive a preferential treatment, like, for instance, more lenient inspections. Some even fear that there could be money involved.

“I do not think they are corrupt,” said Dr. Mel Kramer referring to the Health Department inspectors, “I don’t think there’s money exchanging here. I think that they are not as standardized. I do not think a lot of them know they whys behind the regulations.”

Kramer holds a Ph.D. in Environmental Health and a Master’s degree in Public Health with concentrations in Environmental Health and Epidemiology. He is the president of EHA Consulting Group, Inc., a firm that offers private consultations to businesses who wish to prepare for a sanitary inspections. Sometimes, Kramer said, his firm provides legal representation at Health Tribunals.

Despite the widespread impression that a large number of the inspectors of the Department of Health might be not trained enough, and that they might sometimes act unprofessionally, the Health Department maintains that “Health inspectors in New York City are imminently qualified. They all hold bachelors’ degrees with significant coursework in science.”

Kramer said, however, that would be ideal if each inspector possessed a Registered Environmental Health Specialist qualification, obtained through a standardized exam, in addition to the requirement of a bachelor’s degree in sanitary sciences. The certification, released by the National Environmental Health Association, is already mandatory for health inspectors in New Jersey.

“What we are certain about,” said Kramer, “is that revenue generation, which the city does not like to talk about, is the primary motivating factor.”

After fierce critiques received by business owners and the New York State Restaurant Association, which fought against the implementation of the grading system since the New York City Board of Health voted it in March 2010, the de Blasio administration decided to come to grips with the system.

In March, City Council Speaker Melissa Mark-Viverito and the Health Department announced new restaurant inspection rules. The Health Department will provide restaurants with consultative inspections, free of penalty, which would help them remedy problems before receiving a graded inspection. The New York City Department of Health and Mental Hygiene will hold a public hearing on May 7 to discuss the costs of the voluntary consultations and others aspects of the new rule. Stay tuned.