§ 23-05 Notices of Violation and Penalties for Sustained Violations .

   (a)   The Department shall issue a notice of violation whenever a food service establishment is cited on any sanitary inspection for one or more critical violations or accumulates 14 or more points, regardless of whether any critical violations are cited on such inspection.

   (b)   All violations shall be recorded and/or cited individually on inspection reports and notices of violation.

   (c)   A Health Tribunal hearing examiner must impose the penalty set forth in Appendix C of this Chapter for any sustained violation.

§ 23-06 Revocation or Suspension of Permits .

   (a)   Findings of serious and persistent violations or uncorrected public health hazards on any sanitary inspection may provide the basis for commencement of a proceeding to revoke or suspend a permit pursuant to 24 RCNY Health Code Article 5.

   (b)   The Department shall post signs on any establishment that it orders closed indicating that such establishment is not open to the public and shall remove any posted grade-related card.

   (c)   Prior to authorizing any closed establishment being allowed to re-open, the Department shall conduct a re-opening inspection. The Department may conduct as many inspections as it deems necessary to determine whether the establishment is in compliance with applicable law and may be reopened for operation.

   (d)   If an establishment that is required by 24 RCNY Health Code § 81.51 to post a letter grade is closed and then allowed to re-open, upon re-opening, the grade card that had been posted by the establishment before the closure will be posted again, except that where the closure occurred on the establishment's initial inspection, a "grade pending" card shall be posted, and any grade card previously posted shall be removed, and where the closure occurred on a reinspection a "grade pending" card or the letter grade card corresponding to the score on the reinspection shall be posted.

§ 23-07 Posting Letter Grades .

   (a)   The Department shall at the time of inspection provide any establishment required by 24 RCNY Health Code § 81.51 to post a letter grade that receives a score of 13 or less on an initial or reinspection with a grade card displaying the letter grade "A," which shall be posted immediately by the establishment.

   (b)   If an establishment required by 24 RCNY Health Code § 81.51 to post a letter grade receives a score of 14 or more points on an initial inspection, and is not closed by the Department, it shall continue to post its grade card from the prior cycle until its reinspection. If the establishment has been issued no prior grade card, it shall have no posting until its reinspection.

   (c)   If an establishment required by 24 RCNY Health Code § 81.51 to post a letter grade receives a score of 14 or more points on the reinspection, and is not closed by the Department, the Department shall provide the establishment with a "grade pending" card and a grade card displaying the letter grade that corresponds with its inspection score at the reinspection. The establishment shall immediately post either the grade card or the "grade pending" card. If the establishment elects to post the "grade pending" card, it may only do so until it has had an opportunity to be heard at the Health Tribunal pursuant to subdivision (d) of this section and 24 RCNY Health Code § 81.51.

   (d)   Effect of adjudication at the Health Tribunal on grading of establishments required by 24 RCNY Health Code § 81.51 to post letter grades:

      (1)   If the establishment appears personally at the Health Tribunal and as a result of such proceeding the score received on a reinspection does not change the grade, the establishment shall immediately upon receipt of the notice of decision remove any posted "grade pending" card and post the grade card provided by the Department at such inspection.

      (2)   Subject to the provisions of paragraph (3) of this subdivision, if the establishment does not appear at the Health Tribunal on or before the scheduled hearing date, the establishment shall, on the date of the hearing, post the letter grade card provided by the Department at the reinspection.

      (3)   If the establishment appears at the Health Tribunal on the scheduled date but is unable to proceed, or if the establishment makes a timely request for an adjournment and such adjournment is granted, the establishment may continue to post the "grade pending" card and defer posting the letter grade card until the adjourned hearing date. In no event shall an establishment fail to post the grade card after the adjourned hearing date if the establishment is not able to proceed on such date.

      (4)   If the establishment appears at the Health Tribunal and as a result of such proceeding the score received for the reinspection changes in a way that results in a change of grade, the Department shall provide the establishment with a new letter grade card that shall be promptly posted by the establishment in place of any other letter grade card or "grade pending" card.

      (5)   If the establishment receives notice of decision by mail, the establishment shall immediately upon receipt of the notice of decision remove any grade pending card and post the grade card provided with the notice of decision, if any. If no new grade card is issued with the notice of decision, the establishment shall immediately post the grade card issued by the Department at the reinspection.

      (6)   When an establishment settles the notice of violation issued at the reinspection by mail, online, or in person, the establishment shall immediately upon settlement post the grade card issued by the Department at such reinspection.

      (7)   The disposition of any notice of violation at the Health Tribunal shall not affect any provision of this Chapter or other applicable law other than the issuance of a grade.

   (e)   An establishment required by 24 RCNY Health Code § 81.51 to post a letter grade shall shred or otherwise dispose of all non-current letter grade cards and "grade pending" cards in a manner that prevents reuse of the cards.

   (f)   The "grade pending" or letter grade card shall be posted in a conspicuous place where it is visible to passersby. The card shall be placed on the front window, door or exterior wall of an establishment required by 24 RCNY Health Code § 81.51 to post a letter grade. The card shall be within five feet of the front door or other opening to the establishment where customers enter from the street, at a vertical height no less than four feet and no more than six feet from the ground or floor. An establishment without a direct entrance from the street shall post the grade card or "grade pending" card at a place designated by the Department at its immediate point of entry so that it is clearly visible to passersby.

   (g)   Letter grade cards shall not be removed except when authorized by the Department.

§ 23-08 Effect of Other Laws and Construction .

   (a)   These rules shall be read and enforced in accordance with all applicable provisions of law, including, but not limited to, the State Public Health Law and Sanitary Code, the New York City Health Code, and Title 17 of the Administrative Code of the City of New York.

   (b)   No provision herein shall limit the authority of the Department to conduct such other inspections or take any other action it deems necessary, to enforce any provision of law within the jurisdiction of the Department.

   (c)   If any provision of this Chapter is adjudged invalid by any court of competent jurisdiction, such judgment shall not affect or impair the validity of the remainder of this Chapter.

§ 23-09 Submitting Proof of Correction for Eligible First-Time Violations.

   (a)   Submission of proof of correction must be in writing in a form approved or provided by the Department.

   (b)   The proof must be submitted to the Department electronically or in person within seven (7) calendar days of the date the violation was issued as recorded on the summons, except that the cure period of a first-time violation of Administrative Code § 17-504(f) is within thirty (30) days of the issuance of the notice of violation.

   (c)   Such proof must be affirmed by the permittee or their authorized representative that it is complete and accurate to the best of such person's knowledge.

   (d)   Submission of any false statements in support of a proof of correction may be subject to penalties prescribed for violations of 24 RCNY Health Code § 3.19 and other applicable law.

   (e)   A permittee whose first-time violation is pending at OATH for adjudication is not eligible to submit a proof of correction for a subsequent identical violation.

(Added City Record 2/3/2023, eff. 3/5/2023)

§ 23-10 Acceptance of Proof of Correction for Eligible First-Time Violations.

   (a)   The Department must accept the proof of correction if it determines that the proof is adequately documented and submitted timely in accordance with 24 RCNY § 23-09. Acceptance of proof of correction constitutes a cure and an admission of the violation for all purposes, except as provided in subdivision (b) of this section.

   (b)   A first-time violation whose proof of correction has been accepted by the Department will not be subject to a civil penalty.

   (c)   The determination of whether a violation is a first-time violation shall be based solely on the records of the Department.

   (d)   The Department may require further documentation in addition to the proof of correction and may inspect the establishment or take any other action as it deems necessary before acceptance or rejection of such proof.

   (e)   Nothing in this Chapter limits the authority of the Department to conduct other inspections or take any other action it deems necessary to enforce any provision of law within the jurisdiction of the Department.

(Added City Record 2/3/2023, eff. 3/5/2023)

Appendix 23-A: Food Service Establishment & Non-Retail Food Processing Establishment Inspection Worksheet

Critical Violations	Conditions					Score
	I	II	III	IV	V
Time and Temperature Control for Safety (TCS) Food Temperature
2A*   Food not cooked to required minimum internal temperature:	–	–	–	10	28
Food	Required Minimum Internal Temperature at or above
Poultry, poultry parts, ground and comminuted poultry, all stuffing containing poultry, meats, fish or ratites	165°F for 15 seconds with no interruption of the cooking process
Ground meat, and food containing ground and comminuted meat	158°F with no interruption of the cooking process, except per individual customer request
Pork, any food containing pork	150°F for 15 seconds
Mechanically tenderized or injected meats	155°F
Whole meat roasts and beef steak	Required temperature and time listed in 24 RCNY Health Code § 81.09(c)(3), except per individual customer request
Raw animal foods cooked in microwave	165°F, covered, rotated or stirred for 2 minutes
Shell eggs	145°F for 15 seconds, except per individual customer request
All other foods	140°F for 15 seconds
2B*   Hot TCS food item not held at or above 140°F.	7	8	9	10	28
2C   Hot TCS food item that has been cooked and cooled is being held for service without first being reheated to 165°F or above for 15 seconds within 2 hours.	5	6	7	8	–
2D   Precooked TCS food in hermetically sealed and intact packages from commercial food processing and non-retail processing establishments not heated to 140º F within 2 hours.	5	6	7	8	–
2E   Whole frozen poultry or poultry breasts, other than a single portion, cooked frozen or partially thawed.	5	6	–	–	–
2F   Meat, fish, poultry, eggs or molluscan shellfish served or offered raw or undercooked without written consumer advisory.	5	–	–	–	–
2G*   Cold TCS food item held above 41ºF; smoked or processed fish held above 38°F; intact raw eggs held above 45°F; or reduced oxygen packaged (ROP) TCS foods held above required temperatures except during active necessary preparation.	7	8	9	10	28
2H*   After cooking or removal from hot holding, TCS food not cooled by an approved method whereby the internal product temperature is reduced from 140ºF to 70ºF or less within 2 hours, and from 70ºF to 41ºF or less within 4 additional hours.	7	8	9	10	28
2I   TCS food removed from cold holding or prepared from or combined with ingredients at room temperature not cooled by an approved method to 41ºF or below within 4 additional hours.	5	6	7	8	–
2J*   ROP TCS foods not cooled by an approved method as specified in approved HACCP plan.	7	8	9	10	28
Food Source
3A*   Food from unapproved or unknown source or home canned or home prepared. Live animal slaughtered in establishment. ROP fish not frozen before processing; or ROP foods prepared on premises transported to another site.	–	–	–	10	28
3B*   Shellfish not from approved source, not or improperly tagged/labeled; tags not retained for 90 days.	–	–	–	10	28
3C*   Unclean or cracked whole eggs or unpasteurized liquid, frozen or powdered eggs kept or used.	7	8	9	10	28
3D*   Food packages, canned food, hermetically sealed containers swollen, leaking or rusted, or otherwise damaged, without "Do Not Use" label and not segregated from other consumable food items.	7	8	9	10	28
3E*   No or inadequate potable water supply. Water or ice not potable or from unapproved source. Bottled water not NY State certified. Cross connection in potable water supply system.	–	–	–	10	28
3F*   Unpasteurized milk or milk product (except certain aged cheese) served.	–	–	–	10	28
3G   Raw fruit or vegetables not properly washed prior to cutting or serving.	5	6	7	8	–
3I*   Unpasteurized juice packaged and sealed on premises not labeled or label incomplete; no warning statement.	–	–	–	10	28
Food Protection
4A   Food Protection Certificate (FPC) not held by manager or supervisor of food operations.	–	–	–	–	10
4B*   Food worker spits; prepares food or touches utensil when ill with a disease transmissible by food or has exposed infected cut or burn on hand.	–	–	–	10	28
4C*   Food worker does not use utensil or other barrier to eliminate bare hand contact with food that will not receive adequate additional heat treatment.	7	8	9	10	28
4D*   Food worker does not wash hands thoroughly after using the toilet, coughing, sneezing, smoking, eating, preparing raw foods or otherwise contaminating hands or does not change gloves when gloves are contaminated.	–	–	–	10	28
4E*   Toxic chemicals or pesticides improperly labeled, stored or used such that food contamination may occur.	7	8	9	10	28
4F*   Food preparation area, food storage area, or other area used by employees or patrons, contaminated by sewage or liquid waste.	–	–	–	10	28
4G*   Unprotected TCS food re-served.	–	–	–	10	28
4H*   Raw, cooked or prepared food is adulterated, contaminated, cross-contaminated, or not discarded in accordance with HACCP plan.	7	8	9	10	28
4I   Unprotected non-TCS food re-served.	5	6	7	8	–
4J   Properly calibrated thermometer or thermocouple not provided or not readily accessible in food preparation and hot/cold holding areas to measure temperatures of TCS foods during cooking, cooling, reheating, and holding.	5	–	–	–	–
4K   Evidence of rats or live rats in establishment's food or non-food areas.	5	6	7	8	28
4L   Evidence of mice or live mice in establishment's food or non-food areas.	5	6	7	8	28
4M   Live roaches in establishment's food or non-food areas.	5	6	7	8	28
4N   Filth flies or food/refuse/sewage associated (FRSA) flies or other nuisance pests in establishment's food and/or non-food areas. FRSA flies include house flies, blow flies, bottle flies, flesh flies, drain flies, Phorid flies and fruit flies.	5	6	7	8	28
4O   Live animals other than fish in tank or service animal in establishment's food or non-food areas.	5	6	7	8	–
4P   Food containing a prohibited substance held, kept, offered, prepared, processed, packaged, or served.	–	–	–	10	28
Facility Design and Construction
5A*   Sewage disposal system not provided, improper, inadequate or unapproved.	–	–	–	10	28
5B*   Harmful, noxious gas or vapor detected. Carbon monoxide (CO) level at or exceeding nine (9) ppm.	–	–	–	10	28
5C+   Food contact surface, refillable, reusable containers, or equipment improperly constructed, placed or maintained. Unacceptable material used. Culinary sink or other acceptable method not provided for washing food.	7	8	9	10	28
5D+   No hand wash facility in or adjacent to toilet rooms or within 25 feet of food preparation or service or ware washing area; or hand wash facility not accessible, obstructed or used for non-hand washing purposes. No hot and cold running water or water at inadequate pressure. No soap or acceptable hand-drying device.	–	–	–	10	28
5E+   Toilet facility not provided for employees or for patrons when required. Shared patron-employee toilet accessed through kitchen, food prep or storage area or utensil washing area.	–	–	–	10	28
5F+   Inadequate or no refrigerated or hot holding equipment to maintain TCS foods at required temperatures. Outdoor refrigerator not locked, secured.	–	–	–	10	28
5G+   Separate, enclosed, properly equipped and sized cleaning and service area not provided in mobile food commissary; street, sidewalk used for cleaning units.	–	–	–	10	28
5H+   No facilities available to wash, rinse, and sanitize dishware, glassware, utensils, equipment or refillable returnable containers. No approved written standard operating procedure for avoiding contamination by refillable returnable containers.	–	–	–	10	28
5I+   Refrigeration used to implement HACCP plan for ROP foods not equipped with an electronic system that continuously monitors time and temperature.	–	–	–	10	28
Food Worker Hygiene and Other Food Protection
6A   Personal cleanliness inadequate. Outer garment soiled with possible contaminant. Effective hair restraint not worn when required. Jewelry worn on hands or arms: fingernail polish worn; or fingernails not kept clean and trimmed.	5	6	7	8	–
6B   Tobacco or e-cigarette use, eating, or drinking from open container in food preparation or other area where food, equipment or utensils may be exposed to contamination.	5	6	7	8	–
6C   Food, supplies, or equipment not protected from potential source of contamination during storage, preparation, transportation, display, service or from customer's refillable, reusable container.	5	6	7	8	–
6D   Food contact surface not properly washed, rinsed and sanitized after any activity where contamination may have occurred.	5	6	7	8	–
6E   Sanitized equipment or utensil, including in-use food dispensing utensil, improperly used or stored.	5	6	7	8	–
6F   Wiping cloths soiled or not stored in sanitizing solution; inadequately sanitized.	5	6	7	–	–
6G*   HACCP plan not approved or approved HACCP plan not maintained on premises.	–	–	–	10	28
6H   Records and logs not maintained to show that approved HACCP plan has been properly implemented.	–	–	–	–	28
6I   ROP TCS food not labeled in accordance with approved HACCP plan.	–	–	–	10	28
6J   Refillable, reusable beverage container filled with TCS foods.	5	6	7	8	–
Other Criticals
7A   Duties of an officer of the Department interfered with or obstructed.	–	–	–	–	28
	Critical Violations Total:

 

General Violations	Conditions					Score
	I	II	III	IV	V
Garbage, Waste Disposal and Pest Management
8A   Harborage or conditions conducive to attracting pests to the premises and/or allowing pests to exist when pests or signs of pests are present.	–	–	4	5	–
8B   Garbage receptacles not pest or water resistant, or covered with tight-fitting lids, except while in active use. Garbage receptacles and covers not cleaned after emptying and prior to reuse.	2	–	–	–	–
8C   Pesticide use not in accordance with label or applicable laws. Pesticides, other toxic chemicals improperly used/stored. Unprotected, unlocked bait station used.	2	3	4	5	28
Food Protection
9A   Cans of food with dented body damage not segregated from other cans for return to distributor.	2	3	4	5	–
9B   Thawing procedures improper.	2	3	4	5	–
9C   Food contact surface chipped, cracked, worn, or in a condition where it cannot be properly maintained or cleaned.	2	3	4	5	–
9D   Food service operation occurring in room or area used as living or sleeping quarters.	2	3	4	5	–
9E   "Wash hands" sign not posted at hand wash facility.	2	–	–	–	–
Facility Maintenance
10A   Toilet facility not maintained or provided with toilet paper, waste receptacle or self-closing door.	2	3	4	5	–
10B   Back-siphonage or back-flow prevention device not provided where required; equipment or floor not properly drained; sewage disposal system in disrepair or not functioning properly. Condensation or liquid waste improperly disposed of.	2	3	4	5	28
10C   Lighting inadequate; permanent lighting not provided in food preparation areas, ware washing areas, and storage areas.	2	3	4	5	–
10D   Mechanical or natural ventilation system not provided, improperly installed, in disrepair and/or fails to prevent excessive build-up of grease, heat, steam condensation vapors, odors, smoke, and fumes.	2	3	4	5	–
10E   Accurate thermometer not provided or properly located in refrigerated or hot holding equipment.	2	3	4	5	–
10F   Non-food contact surface or equipment improperly maintained or made of unacceptable material, or not kept clean, or not properly sealed, raised, spaced or movable to allow accessibility for cleaning on all sides, above and underneath equipment or other structures.	2	3	4	5	–
10G   Proper sanitization not used or provided for ware washing operation. No test kit.	–	–	–	5	–
10H   Single service item reused, not protected from contamination when transported, stored, or dispensed; not used when required.	2	3	4	5	–
	General Violations Total
Critical and General Combined Total
* Public Health Hazards (PHH) or Imminent Health Hazards must be corrected immediately.
+ Pre-permit Serious Violations that must be corrected before permit is issued.

 

(Amended City Record 9/2/2021, eff. 10/2/2021; amended City Record 2/3/2023, eff. 3/5/2023)