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(a) Grading. The Department shall establish and implement a system for grading and classifying inspection results for food service establishments using letters to identify and represent an establishment's degree of compliance with the provisions of this Code, the State Sanitary Code and other applicable laws that require such establishments to operate in a sanitary manner so as to protect public health. The letter "A" shall be the grade representing the highest degree of compliance with such laws. Subject to the provisions of this section, the Department shall provide each operating establishment that it inspects with a letter grade card indicating the establishment's inspection grade, except that no letter grade card shall be provided when the Department orders an establishment closed after an inspection.
(b) Posting. Upon receipt, and except as provided in subdivisions (c) and (e), an establishment shall conspicuously post a letter grade card so that it is visible to the general public and to patrons prior to entering the establishment. The letter grade card shall not be defaced, marred, camouflaged or hidden from public view.
(c) Issuance of grade card.
(1) "A" grades. For any establishment receiving an "A" grade, the Department shall provide the establishment with a letter grade card at the conclusion of the inspection where such grade is determined. The grade card shall be posted immediately.
(2) Other grades. For any food service establishment receiving a grade lower than an "A," the Department shall advise the establishment of its inspection grade and the findings upon which it was based. The Department shall conduct a subsequent inspection of the establishment no sooner than seven (7) days after the first inspection. At the conclusion of the second inspection, the Department shall provide the establishment with a letter grade card indicating the inspection grade that the establishment received on that inspection.
(d) Adjudications. After any notice of violation ("NOV") issued at an inspection at which a letter grade card was provided to a food service establishment is heard and determined by the Health Tribunal at the Office of Administrative Trials and Hearings ("OATH"), the Department shall re-grade the inspection results taking into account only the violations alleged in the NOV that were either admitted by the establishment or sustained by a hearing examiner. If re-grading changes the inspection grade, the Department shall issue the food service establishment a new letter grade card that the establishment shall immediately post instead of or in place of the letter grade card provided by the Department at the conclusion of the inspection resulting in the issuance of the NOV.
(e) When posting may be deferred.
(1) Any food service establishment receiving a grade lower than an "A" at a second inspection conducted pursuant to subdivision (c) of this section may defer posting the letter grade card provided by the Department at the conclusion of that inspection until the hearing date scheduled by the Department. If an establishment chooses to defer posting this letter grade card, the establishment shall remove any letter grade card that is currently posted, and instead post a sign provided by the Department advising the public that the establishment's inspection result is under review and that the results of the inspection can be obtained from the Department.
(2) If an establishment does not appear at the Health Tribunal at OATH on the date scheduled for hearing the NOV referred to in subdivision (d), the establishment shall immediately post the letter grade card issued by the Department at the second inspection conducted pursuant to subdivision (c). If the establishment appears at the Health Tribunal at OATH on the scheduled date, but the hearing is unable to proceed for any reason, or if the establishment makes a timely request for an adjournment and such adjournment is granted, the establishment may continue to defer posting the letter grade card until the adjourned hearing date. In no event shall an establishment defer posting its letter grade card after the adjourned hearing date if the establishment is not able to proceed on such date.
(f) Scope and applicability. This section shall not apply to mobile food vending units, mobile food vending commissaries, temporary food service establishments, food service establishments operated in or by primary and secondary schools, hospital-operated cafeterias, correctional facilities, or charitable organizations, including soup kitchens or other prepared food distribution programs, nor to food service establishments operated by not for profit membership organizations for service to their members only.
(g) No effect on other enforcement. Nothing in this section shall affect the Department's authority to take any other action necessary to protect the public health or to enforce the provisions of this Code or any other law or rule applicable to operation of a food service establishment.
When the strict application of any provision of this Article presents practical difficulties or unusual hardships, the Commissioner, in a specific instance, may modify the application of such provision consistent with the general purpose of this Article and upon such conditions as in his or her opinion are necessary to provide for clean and sanitary food prepared, manufactured, processed or served in clean and sanitary establishments. The denial of a request for modification by the Commissioner shall be deemed a final agency determination.
A temporary food service establishment shall be constructed, maintained and operated in accordance with this article, 24 RCNY Health Code Article 81, Subpart 14-2 of the State Sanitary Code or successor regulations, and 24 RCNY Chapter 23 ("Food Service Establishment Sanitary Inspection Procedures"). Such temporary food service establishment shall not present a danger to the health or safety of patrons or to the public health with respect to the condition of the establishment, its equipment, utensils, personnel, mode of operations, surroundings, water supply, liquid and solid waste and sewage disposal, food served and appurtenances.
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