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The provisions of this Article shall apply equally to all food service establishments and non-retail food processing establishments, and shall be construed in a manner that protects the health and safety of the public. All other applicable provisions of this Code, the State Sanitary Code, and the rules of the Commissioner shall be complied with in addition to the requirements set forth in this Article. Owners and operators of food service establishments and non-retail food processing establishments shall operate such establishments in a sanitary manner so as to prevent imminent or public health hazards and to otherwise protect the public health. This Article applies to all food service establishments and non-retail processing establishments where food, as defined in 24 RCNY Health Code Article 71, is prepared and offered for service, including but not limited to:
• mobile food vending units,
• mobile food vending commissaries,
• other food commissaries and shared or communal kitchens that are not inspected or regulated according to the State Agriculture and Markets Law,
• vending machines,
• temporary food service establishments,
• caterers,
• cafeterias,
• charitable organizations' kitchens,
• social clubs,
• delicatessens,
• restaurants, and,
• bars.
The terms "establishment" or "food establishment" when used in this Article shall refer to a food service establishment or non-retail processing establishment regulated by this Code.
When used in this Title and Code:
(a) Adequate or sufficient means able to accomplish the purposes for which something is intended, and to such a degree that no unreasonable risk to health or safety is presented. An item installed, maintained, designed and assembled, or an activity conducted or act performed in accordance with generally accepted standards, principles or practices applicable to a particular trade, business, occupation or profession, consistent with generally accepted public health standards, is adequate or sufficient within the meaning of this Article.
(b) Aquatic animal means fresh or saltwater finfish, crustaceans and other forms of aquatic life (including but not limited to alligator, frog, aquatic turtle, jellyfish, sea cucumber, and sea urchin and the roe of such animals) other than birds or mammals, and all mollusks, if such animal life is intended for human consumption.
(c) Aw means water activity, which is the measure of the free moisture in a food, and is indicated by the symbol Aw. Its numeric value is the quotient of the water vapor pressure of the food substance divided by the vapor pressure of pure water at the same temperature.
(d) Caterer means a food service establishment holding a permit issued by the Commissioner that prepares food and may provide transportation for, and service of food at, a location other than the establishment. A caterer also is any person who prepares food at a permitted food service or non-retail processing establishment for service at another location.
(e) Comminuted means reduced in size by methods including chopping, flaking, grinding, mincing; or a mixture of aquatic animals or meat products that have been reduced in size and restructured and reformulated.
(f) Contaminated means adulterated or spoiled food, or food and equipment which is exposed to filth, toxic substances, rodent or insect contact or infestation, or potentially hazardous foods held at temperatures between 41 degrees Fahrenheit (5 degrees Celsius) and 140 degrees Fahrenheit (57 degrees Celsius) for a period of time exceeding that reasonably required for preparation, including potentially hazardous foods which are not heated or cooked to the temperatures specified in 24 RCNY Health Code § 81.09, or food in or subject to any condition which could permit the introduction of pathogenic microorganisms or foreign matter, including manual contact during service or preparation if such foods will not be subsequently cooked or heated to the temperatures specified in 24 RCNY Health Code § 81.09.
(g) A controlled-location vending machine means a food vending machine which dispenses only food that is not potentially hazardous, can be serviced in a sanitary manner by an untrained person at the location and is located where it is protected from environmental contamination, abuse and vandalism.
(h) Cook chill processing means a type of reduced oxygen packaging process in which cooked food is hot filled into impermeable bags that have the air expelled and are then sealed or crimped closed. The bagged food is rapidly chilled and refrigerated at temperatures that inhibit the growth of psychrotrophic pathogens (pathogens that grow slowly at refrigerated temperatures and that include, but are not limited to, Listeria monocytogenes, Clostridium botulinum and Yersinia enterocolitica or yersiniosis).
(i) Critical control point means a point or procedure in a specific food system where loss of control may result in an unacceptable health risk.
(j) Critical limit means the maximum or minimum value to which a physical, biological or chemical parameter must be controlled at a critical control point to minimize the risk that the identified food safety hazard may occur.
(k) Cured food means food preserved by drying, salting, smoking or pickling, or a combination of such methods.
(l) Cut leafy greens means leafy greens whose leaves have been cut, shredded, sliced, chopped, or torn. The term "leafy greens" includes, but is not limited to:
• iceberg lettuce,
• romaine lettuce,
• leaf lettuce,
• butter lettuce,
• baby leaf lettuce (i.e., immature lettuce or leafy greens),
• arugula or rocket lettuce,
• escarole,
• endive,
• spring mix,
• spinach,
• cabbage,
• kale, and,
• chard or any other cut, shredded, sliced, chopped or torn edible green leafy vegetable.
(m) Easily cleanable means readily accessible and of such material and finish that residues may be completely removed by normal cleaning methods.
(n) Easily movable equipment means equipment that is mounted on wheels or casters with flexible, extensible, or quick disconnecting utility connections, if any, so that the equipment may be easily moved for cleaning.
(o) Equipment means any tool, item, fixture or article used in the operation of a food service establishment, and any component of such tool, item, fixture and article including but not limited to, all stoves, ranges, microwave ovens, hoods, meat blocks, tables, counters, refrigerators, sinks, dishwashing machines, steam tables and similar items, other than utensils, used in the operation of a food service establishment or non-retail food processing establishment.
(p) Food-contact surfaces mean the surfaces of equipment, utensils, tableware and kitchenware, such as ladles, colanders, serving spoons, spatulas, pots and pans, which normally come into contact with food or from which liquids and residues may drain back into food or onto other food-contact surfaces.
(q) Food grade material means material used in the construction and design of food contact surfaces, equipment and utensils that is certified as meeting the standards of the National Sanitation Foundation (NSF) or any other organization utilizing a process approved by the American National Standard Institute (ANSI) or that is otherwise acceptable to the Department, in compliance with 24 RCNY Health Code § 81.17.
(r) Food worker or food handler means any person who works in a food service establishment or non-retail food processing establishment, including but not limited to any person described in 24 RCNY Health Code § 11.01(l).
(s) Food service establishment means a place where food is provided for individual portion service directly to the consumer whether such food is provided free of charge or sold, and whether consumption occurs on or off the premises or is provided from a pushcart, stand or vehicle.
(t) A food vending machine means a self-service device that when activated, dispenses unit servings of food or beverage without requiring replenishing between each vending operation.
(u) A food vending machine commissary means a place where food, containers or supplies are processed or packaged and prepared for use in food vending machines.
(v) A food vending machine operation means the place where food vending machines are located and includes the food vending machines, machine servicing equipment, utensils, personnel, single-service articles, tables, chairs, that part of the premises used in connection with the food vending machine operation and all other appurtenances required and used to operate and maintain the food vending machines.
(w) Frozen dessert means:
• ice cream,
• frozen custard,
• French ice cream,
• French custard ice cream,
• artificially sweetened ice cream,
• ice milk,
• artificially sweetened ice milk,
• fruit sherbet,
• non-fruit sherbet,
• water ices,
• non-fruit water ices,
• confection frozen without stirring,
• dairy confection frozen without stirring,
• manufactured dessert mix,
• frozen confection,
• melloream frozen dessert,
• parevine,
• frozen yogurt,
• freezer made shakes,
• freezer made milk shakes,
• dietary frozen dessert,
• whipped cream confection, and,
• bisque tortoni,
as all such products are commonly known, together with any mix used in making such frozen desserts, and any products that are similar in appearance, odor or taste to such products, or are prepared or frozen as frozen desserts are customarily prepared and frozen, whether made with dairy products or non-dairy products, and chips or flakes of ice made from water with or without additives, served to the customer with or without flavoring, in accordance with standards of identity for such foods established in Article 4-a of the State Agriculture and Markets Law, or successor statute.
(x) Hazard Analysis and Critical Control Point (HACCP) plan means a written document that delineates the formal procedures for following the hazard analysis and critical control point principles developed by the National Advisory Committee on Microbiological Criteria For Foods.
(y) Imminent health hazard or public health hazard means any violation, condition, or combination of violations or conditions making it probable that food served to the public by the establishment or its continued operation will be injurious or dangerous to the health of any person consuming such foods.
(z) Indirect drain means a waste line which does not connect directly with the drainage system, but conveys and discharges liquid wastes through an air break into an approved plumbing fixture or receptacle that is directly connected to the drainage system.
(aa) Non-retail food processing establishment means a facility where food is processed, prepared, stored or packed for consumption off the premises and not given or sold directly to the consumer. This shall include but not be limited to mobile food vending commissaries, food vending machine commissaries, and shared kitchens where space and equipment are rented, leased or otherwise contracted for use by other persons, such as caterers.
(bb) Operating or in operation means that one or more food workers in a food service establishment is receiving, preparing, storing or serving food or that the establishment is open to the public.
(cc) Packaged means bottled, canned, cartoned, securely bagged, or securely wrapped, and does not include a wrapper, carry out box, or other non durable container used to containerize food for the purpose of facilitating food protection during service and receipt of the food by the consumer.
(dd) pH means the symbol for the negative logarithm of the hydrogen ion concentration that is a measure of the degree of acidity or alkalinity of a solution.
(ee) Potentially hazardous food (PHF) or time and temperature controlled for safety (TCS) food means any food that consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish, crustacea and other aquatic animals, foods of plant origin that have been heat treated; garlic in oil mixtures that support the growth of Clostridium botulinum or toxin formation; cut melons, cut leafy greens, cut tomatoes or mixtures of cut tomatoes that are not modified in a way so that they are unable to support pathogenic microorganism growth or toxins formation; raw bean or seed sprouts; or other foods in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms, or growth of C. botulinum. The term does not include food with a water activity (aw) value of 0.85 or less, or a hydrogen ion concentration (pH) level of 4.6 or below. A food may be deemed not potentially hazardous because of the combined effect of aw and pH other than as previously specified if supported by a food product assessment acceptable to the Department.
(ff) Processed fish means fish that has been cured, salted, marinated, dried, pickled, fermented or smoked for human consumption.
(gg) Ready-to-eat food means food that is in a form that is edible without additional preparation or heat treatment to achieve food safety in accordance with the provisions of this Article.
(hh) Reduced oxygen packaging means the reduction of the amount of oxygen in a food packaged by removing oxygen; displacing oxygen and replacing it with another gas or combination of gases; or otherwise controlling the oxygen content to a level below that normally found in the atmosphere (approximately 21% at sea level) and where the food being packaged requires control of Clostridium botulinum or Listeria monocytogenes in the final packaged form. Reduced oxygen packaging includes, but is not limited to, vacuum packaging, cook chill packaging, and sous vide processing.
(ii) Sanitization means effective bactericidal treatment by heat or chemical means that destroys pathogens on surfaces treated. Acceptable sanitization methods are:
(1) immersion for at least one-half minute in clean hot water at a temperature of at least 170 degrees Fahrenheit (76.7 degrees Celsius);
(2) immersion for at least one minute in a clean solution containing at least 50 parts per million of available chlorine at a temperature of at least 75 degrees Fahrenheit (23.9 degrees Celsius);
(3) immersion for at least one minute in a clean solution containing at least 12.5 parts per million of available iodine and having pH not higher than 5.0 and at a temperature of at least 75 degrees Fahrenheit (23.9 degrees Celsius);
(4) immersion for at least one minute in a solution of 200 parts per million quaternary ammonium at a temperature of at least 75 degrees Fahrenheit (23.9 degrees Celsius);
(5) immersion in a clean solution containing any other food grade chemical sanitizing agent that will provide the equivalent bactericidal effect of a solution containing at least 50 parts per million of available chlorine as hypochlorite which has been held at a temperature of at least 75 degrees Fahrenheit (23.9 degrees Celsius) for one minute;
(6) treatment with culinary-quality steam in the case of equipment too large to sanitize by immersion, but in which steam can be confined; or
(7) swabbing fixed equipment with a solution of at least twice the strength required for that sanitizing solution when used for immersion.
(jj) Single service articles means cups, containers, lids, or closures, plates, knives, spoons, stoppers, paddles, straws, place mats, napkins, doilies, wrapping materials, toothpicks and all similar articles which are intended by the manufacturer for single eating and drinking usage and generally recognized by the public as items to be discarded after one usage.
(kk) Shared kitchen means a commercial kitchen that is rented or leased by more than one food service establishment operator.
(ll) Sous vide processing is a type of reduced oxygen packaging in which raw or partially cooked food is placed in a hermetically sealed, impermeable bag, cooked in the bag, and either served or rapidly chilled, and refrigerated at temperatures that inhibit the growth of psychrotrophic pathogens.
(mm) Stand means a movable, portable or collapsible structure, framework, device, container, or other contrivance, other than a vehicle or pushcart, used for displaying, keeping or storing any food at a temporary food service establishment.
(nn) Temporary food service establishment means a food service establishment as defined in 24 RCNY Health Code Article 88. Additional to the provisions of this Article, a temporary food service establishment shall be operated at all times in compliance with the provisions of 24 RCNY Health Code Article 88 and all applicable provisions of this Code.
(oo) Utensil means any tableware, such as knives, forks, spoons, glasses, cups, dishes and the like, and kitchenware, implements or containers used for storage, preparation, transfer, conveyance or service of food.
(pp) Ware washing means the cleaning and sanitizing of utensils and food contact surfaces of equipment.
(Amended City Record 7/9/2015, eff. 8/8/2015)
Food shall be obtained from sources approved by the appropriate regulatory authority having jurisdiction over such food source and shall comply with all federal, state and city laws, rules, and regulations related to food, the use of food, and food labeling.
(a) Frozen desserts. Frozen desserts shall be identified, manufactured, and sold in accordance with Article 4-A of the State Agriculture and Markets Law or any successor statute.
(b) Meat. No meat shall be served or sold in a food service or non-retail food processing establishment unless the meat is inspected and approved by the United States Department of Agriculture or any other authorized government agency.
(c) Shellfish tags. Fresh and frozen shellfish, shelled or shucked shellfish (oysters, clams, scallops, scallops with roe attached or mussels) shall be identified with the name and address of the original shell stock processor, shucker-packer or repacker, and the foreign intrastate and interstate identification number issued pursuant to applicable law. Identification tags shall be retained on the premises for 90 days from the date the shellfish was used, in accordance with State Sanitary Code § 14-1.33(b) or any successor provision. No tags are required to be kept for shucked scallop abductor muscles.
(d) Exotic and game animals. Exotic animals not native to New York State and any game animals served in food service establishments must be obtained from commercially regulated sources, such as those described in regulations of the State Department of Agriculture and Markets found at 1 NYCRR § 271-2.2, or successor regulations.
(e) Labeling unpasteurized packaged juices.
(1) Definitions. For the purposes of this subdivision:
(A) Juice means the aqueous (water-based) liquid expressed or extracted from one or more fruits or vegetables, purees of the edible portions of one or more fruits or vegetables, or any concentrates of such liquid or purees.
(B) Packaged juice means juice that has been sealed in bottles or other containers.
(2) Labeling. Unpasteurized packaged juices prepared by a food service establishment for direct sale to the establishment's patrons must be labeled in accordance with 24 RCNY Health Code § 71.05(d) so as not to be misbranded, and such label must include the following information:
(A) Food ingredients, using common names;
(B) Food additives, if any;
(C) Name and address of the entity that packaged the juice;
(D) "Use by" date;
(E) The statements: "WARNING: This product has not been pasteurized. It may contain harmful bacteria that can cause serious illness, especially in children, elderly persons and persons with weakened immune systems." and "Must keep refrigerated."
(3) Juice produced for wider distribution. Juice produced and/or packaged by any establishment that is distributed at wholesale or to any persons other than the establishment's patrons must be produced and packaged in accordance with 21 C.F.R. Part 120, or any successor regulations.
(Amended City Record 7/9/2015, eff. 8/8/2015)
(a) Permit required. Except as specified in this section, no person shall operate a food service establishment or non-retail food processing establishment without a permit therefor issued by the Commissioner.
(b) An operator of a food service establishment or non-retail food processing establishment shall construct, equip, furnish, maintain and operate such establishment in compliance with this Article and all other applicable federal, state and city laws, rules and regulations.
(c) Prior to new construction or major renovation of a food service establishment or non-retail food processing establishment, or at any time thereafter where the Department determines that the public health and safety requires a Departmental review of the physical plant of such establishment, the Department may require such establishment to submit sketches or plans showing the floor layout, equipment, plumbing, ventilation, refuse storage facilities, sewage disposal facilities and similar information on a form acceptable to the Department. Submission and review of plans shall not relieve the operator of such establishment or his or her successor from meeting all requirements of this section.
(d) A food service or non-retail food processing establishment may not operate without a permit for 21 days after submitting an application for a permit unless the Department has conducted an inspection and approved issuance of a permit. If the Department does not make an inspection of the establishment during this 21 day period, operations may commence without a permit on the twenty-second day after submission of an application for a permit, and the establishment may continue operating without being in violation of this section until such time as the Department inspects the establishment and either approves issuance of a permit or issues an order to cease operation for cause in accordance with this Code.
(e) A permit for a food service establishment or non-retail food processing establishment shall be issued subject to the establishment being constructed, maintained and operated in compliance with this Code, and not presenting a danger to the health or safety of the consumer or to the public. The condition of the establishment, including its equipment, utensils, personnel, mode of operation, surroundings, water supply, sewage disposal, waste handling, furnishings, food and appurtenances, and, if applicable, past history of compliance or non-compliance, shall be considered in determining whether its operation may be dangerous or detrimental to the public health. If the pre-permitting inspection indicates that such conditions are unsatisfactory, the operator shall be advised of the violations which prevent issuance of such permit.
(f) Religious, fraternal and charitable organizations which provide food services more often than once a week shall obtain a permit pursuant to this Article; provided, however, that an organization providing food service less frequently than once a week shall notify the Department in writing of its intention to engage in such food service operations and shall obtain authorization from the Department. Such authorization may be issued for a term not to exceed two years. The payment of a fee for such authorization shall not be required. The provisions of this subsection shall not limit in any way the right of the Department to take any actions necessary to protect the public health.
(g) Every person using or contracting for use of shared kitchen space and equipment shall obtain a permit to operate a food service establishment unless such person is licensed or regulated by the Commissioner of Agriculture and Markets pursuant to Article 20-C, or any successor provision, of the Agriculture and Markets Law. However, a person holding a non-retail processing establishment permit to operate a shared kitchen shall be responsible for maintaining the condition of the establishment, its equipment, surroundings, water supply, waste handling, furnishings and other appurtenances in accordance with this Code.
(h) No person operating a shared kitchen shall rent space or equipment in the shared kitchen to an individual who intends to use the facility to prepare food for sale or service to the public and does not have a currently valid food service establishment permit issued by the Commissioner, unless such user is currently licensed or regulated by the Commissioner of Agriculture and Markets.
(i) Upon the request of the Department, the operator of a shared kitchen shall provide a copy of any agreement between the operator and the user. Such agreement shall indicate the purpose of using the shared kitchen, the type of food to be prepared, and the place where the food will be sold.
(j) A permit shall not be issued if the applicant or a principal of an entity applying for such has been denied a permit on the basis of violations of this Code which could have resulted in the suspension or revocation of a permit. A permit may be renewed, provided that the permittee meets all requirements for renewal, the permit has not been revoked or suspended, and the permittee has not been determined to have committed a violation that could be a basis for permit revocation or suspension under this Article.
(Amended City Record 7/9/2015, eff. 8/8/2015)
(a) Additional requirements. Whenever necessary to prevent the occurrence or recurrence of imminent or public health hazards the Department may, in specific instances, impose additional requirements on an establishment. The Department shall describe in writing the terms and conditions of operation that have been imposed, the reasons therefore, shall provide such document to the permit holder, and shall maintain such document with the records of the Department.
(b) Hazard Analysis and Critical Control Point ("HACCP") plans.
(1) To prevent the occurrence of an imminent or public health hazard, a HACCP plan shall be prepared by a food service establishment or non-retail processing establishment whenever such establishment prepares, processes, cooks, holds and stores foods in a manner other than as specified in this Code or other applicable law.
(2) Whenever a HACCP plan is required, such plan shall be submitted to and approved by the Department prior to its implementation, and shall thereafter be maintained at the establishment and be made available to Department inspectors for review upon request.
(3) A HACCP plan shall include the following:
(i) Types and categories of foods to be addressed by the plan.
(ii) Food flow diagram or plan identifying critical control points, specifying ingredients, materials and equipment used in processing, and addressing the food safety concerns identified at each such point.
(iii) Standard operating procedures for implementing the plan, including clearly identifying each critical control point; method and frequency of monitoring and controlling each critical control point by a foodworker trained in HACCP plan implementation who is designated by the person in charge of food operations; and the method and frequency whereby the person in charge of food operations routinely verifies that the foodworker is following standard operating procedures and the action to be taken by the responsible foodworker if the critical limits for each critical control point are not met.
(iv) The critical limits for each critical control point, and the method and frequency for monitoring and controlling critical limits at each critical control point by the designated foodworker.
(4) Records/logs shall be maintained by the permittee for at least 90 days after consumption of the food prepared pursuant to the HACCP plan to demonstrate that the HACCP plan has been properly implemented.
(c) Prior approval required for certain foods and processing. Approval by the Department of a food service establishment's HACCP plan shall be obtained prior to processing any potentially hazardous food on the food service establishment's premises by means of reduced oxygen packaging methods, drying, fermentation, curing, or smoking food products. No HACCP plan is required for processes that are conducted in accordance with the time and temperature requirements of 24 RCNY Health Code § 81.09.
(Amended City Record 7/9/2015, eff. 8/8/2015)
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