§ 81.35 Food Service Establishments and Non-Retail Food Processing Establishments; Refrigerators . [Repealed]

§ 81.37 Food Service Establishments and Non-Retail Food Processing Establishments; Cleaning of Premises, Equipment and Utensils; Cleaning Methods . [Repealed]

§ 81.39 Food Service Establishments and Non-Retail Food Processing Establishments; Sealing of Unclean Equipment, Utensils and Vehicles; Denial, Suspension and Revocation of Permits; Enforcement .

   (a)   When, in the opinion of an inspector or authorized employee of the Department, any equipment, utensil or vehicle in a food service establishment or non-retail food processing establishment presents an imminent health hazard, is in an unclean condition, or in disrepair or damaged to such an extent so as to render it unsafe, such equipment, utensil, vehicle or any part thereof may be ordered sealed and its use immediately discontinued upon the approval of the director of the bureau of the Department enforcing this Article. Upon such sealing, the representative of the Department shall affix thereto labels or conspicuous signs bearing the word "unclean" or any other wording necessary to describe the sanitary condition or safety of the sealed equipment, utensil or vehicle, and he or she shall also prepare or cause to be prepared an order of the Commissioner or Department. The order and notice shall direct the discontinuance of the use or operation of the unclean article until it shall have been cleaned and made sanitary and safe, and the seals, labels or signs removed by a representative or with the authorization of the Department.

   (b)   When a food service establishment or non-retail food processing establishment is found upon inspection to be operating without a valid permit in violation of 24 RCNY Health Code § 81.05, the Department may order such establishment to close and cease all food operations immediately, and to remain closed until the establishment or operation has obtained and displays a valid permit.

   (c)   In addition to the forfeitures and penalties set forth in 24 RCNY Health Code Articles 3 and 5 of this Code, the Department may deny, suspend or revoke any permit or authorization issued pursuant to this Article when serious, repeated or persistent violations of any of the provisions of this Code have been found, or where interference with personnel of the Department in the performance of their duties or a violation of 24 RCNY Health Code § 5.17 occurs. Any person ordered to cease operation and service pursuant to this Article shall comply with such order immediately, and shall thereafter be provided with an opportunity to be heard pursuant to rule of the Department.

   (d)   The Department may deny or suspend a permit or authorization and order immediate cessation of operations and/or service of food at a food service establishment or non-retail food processing establishment if continued operation is an imminent hazard to public health. Any person ordered to cease operations and/or service of food pursuant to this subsection shall comply with such order immediately, and shall thereafter be provided with an opportunity to be heard pursuant to rule of the Department.

   (e)   Any order or notice issued pursuant to this section shall be served by personal delivery to the owner or person in charge of the food establishment, or by any method authorized by §§ 17-141 or 17-148 of the New York City Administrative Code, and an original thereof shall be filed with the Department.

   (f)   Seals, labels, signs, notices and orders affixed by the Department shall not be removed except by order of the Commissioner or his or her designated representative and not until the objectionable condition is removed or corrected.

§ 81.41 Dispensing Devices Used to Dispense Food; Construction, Cleanliness, Refrigeration, Safety .

   (a)   No person shall employ a food vending machine for the sale of packaged food or beverages in closed bottles or containers unless:

      (1)   the machine is designed and constructed to allow effective cleaning and maintenance and to remain free from insect and rodent harborages and other nuisances;

      (2)   the machine is designed and constructed so as not to become a hazard to children or others while in use or under foreseeable conditions of abuse;

      (3)   potentially hazardous foods shall be kept at or below 41 degrees Fahrenheit (5 degrees Celsius) or at or above 140 degrees Fahrenheit (60 degrees Celsius);

      (4)   the machine and the surrounding area are kept clean and sanitary.

   (b)   No person shall employ a food vending machine for the sale of unpackaged food or for the sale of beverages other than in closed bottles or containers unless the requirements of subsection (a) of this section are met and, in addition, the device is free from lead, cadmium or any other substance which may be so affected by the food or beverage as to form dangerous or deleterious compounds, or as to render food or beverage which comes into contact with such substance unwholesome or detrimental to health, or to impart odor, color or taste to the food. When the food vending machine is connected to a water supply system, it shall be designed and constructed to prevent contamination of the water supply system. Devices which dispense carbonated beverages shall be equipped with an air gap at the water inlet, or a protective device to vent any leaking carbon dioxide to the atmosphere, or any other protective device approved by the Department which will provide positive protection against the entrance of carbon dioxide or carbonated water into the water supply system. The water supply contact surfaces in devices which dispense carbonated beverages, from the protective device downstream including the protective device itself, shall not have any copper or copper-lined components in contact with the water supply or the beverage and its other components including any ice making and dispensing apparatus.

   (c)   There shall be provided in the immediate vicinity of all coin-operated or other mechanical dispensing devices, receptacles for the disposal of food or beverage containers.

   (d)   Potentially hazardous food shall be dispensed in individual, original containers or wrappers in which it was packaged at the food vending machine commissary or non-retail food processing establishment. Potentially hazardous food shall not be dispensed from bulk supplies.

   (e)   All food, other than fresh fruit, shall be stored or packaged in clean protective containers, or dispensed into clean single-use containers, and all food shall be prepared and vended in a sanitary manner and shall in all respects comply with the provisions of this Article.

§ 81.43 Reporting Complaints of Patrons' Illness, Emergency Occurrences .

   (a)   When a food service establishment or non-retail food processing establishment learns, has reason to suspect that a person has a food related illness, or is notified of any illness of a person diagnosed by a physician which allegedly resulted from food served at, or originating from, such establishment, the owner or person in charge shall immediately notify the Department. The Department may require the owner or the person in charge to submit, within 24 hours of the telephone report, a written report giving such additional information concerning the complaint as the Department may require. Under applicable provisions of the New York State Public Officers Law, reports may be subject to inspection by persons other than the Commissioner and authorized personnel of the Department but personal information about the patrons shall be redacted. Such reports shall not be used as a basis for prosecution by the Department.

   (b)   When a food service establishment or non-retail food processing establishment is subject to an occurrence which might result in contamination of food or food being held out of temperature limits, including but not limited to fire, power outage, or flood, the owner or person in charge shall immediately notify the Department.

§ 81.45 Drinking Straws and Single Service Utensils . [Repealed]

§ 81.46 Refillable, Returnable Containers.

   (a)   Beverage containers. Employees or consumers may refill consumers' personal take-out beverage containers (such as thermally insulated bottles, non-spill coffee cups, and promotional beverage containers) with beverages that are not potentially hazardous foods, provided that beverages are dispensed in a manner that prevents contact with, or contamination of, the food contact surfaces of the beverage dispensing equipment.

   (b)   Other containers. An establishment providing consumers with returnable containers must wash and sanitize all such containers before reuse in accordance with 24 RCNY Health Code § 81.29. An establishment that does not wash and sanitize patrons' containers before reuse must obtain Department approval of a written standard operating procedure that demonstrates that there is no contamination of food and/or food contact surfaces. Such procedure must be maintained on the premises and made available at the time of Department inspection.

   (c)   Container materials. Reusable containers that will be washed and sanitized must be made of food grade materials resistant under normal conditions of use to scratching, scoring, decomposition, crazing, chipping and distortion, and of sufficient weight and thickness to be washed and sanitized in accordance with 24 RCNY Health Code § 81.29.

(Added City Record 7/9/2015, eff. 8/8/2015)  

§ 81.47 Water Potability Certificates . [Repealed]

§ 81.49 Sodium Warning.

   (a)   Definitions. When used in this section the following words and terms have the following meanings:

      (1)   Combination meal means a standard menu item that consists of more than one food item. A combination meal may be represented on the menu or menu board in narrative form, numerically, or pictorially. Some combination meals may include a variable menu item or be a variable menu item, as defined in this subdivision, where the components may vary and the customer selects which components will be included in the meal.

      (2)   Covered establishment means a food service establishment, as defined in 24 RCNY Health Code § 81.03 and permitted by the Department, that is part of a chain with 15 or more locations doing business under the same name and offering for sale substantially the same menu items.

      (3)   Food item with a high sodium content means any standard menu item offered by a covered establishment that contains per discrete serving unit more than or equal to 2,300 milligrams (mg) of sodium, or a combination meal offered by a covered establishment if any combination of food items available to the consumer contains more than or equal to 2,300 mg of sodium.

      (4)   Food on display means food that is visible to the customer before the customer makes a selection, so long as there is not an ordinary expectation of further preparation by the customer before consumption.

      (5)   Menu or menu board means a printed list of the names or images of a food item or items, and the primary writing of a covered establishment from which a customer makes an order selection. Menus include breakfast, lunch, and dinner menus; dessert menus; beverage menus; children's menus; other specialty menus; electronic menus; and menus on the internet, and may be in various forms, including booklets, pamphlets, single sheets of paper, or electronic screens. Determining whether a writing is or is part of the primary writing of a covered establishment depends on a number of factors, including whether the writing lists the name of a standard menu item (or an image depicting the standard menu item) and the price of the standard menu item, and whether the writing can be used by a customer to make an order selection at the time the customer is viewing the writing. Menu boards include menu boards inside the establishment as well as drive-through menu boards outside the establishment.

      (6)   Point of purchase means any place where a customer may order food within an establishment.

      (7)   Standard menu item means any individual food item or combination of food items listed or displayed on a menu or menu board that is sold by a covered establishment.

      (8)   Variable menu item means a standard menu item that comes in different flavors, varieties or combinations and is listed as a single menu item.

   (b)   Required warning. A covered establishment that offers for sale any food item with a high sodium content must provide the following warning:

      (1)   An icon must appear on a menu or menu board next to any food item with a high sodium content, or on a tag next to any food on display that is a food item with a high sodium content:

         The icon must be a black and white equilateral triangle as wide as it is tall and equal in height to the largest letter in the food item's name, as displayed on the menu, menu board, or tag next to any food on display; and

      (2)   The following statement must be posted conspicuously at the point of purchase:
"Warning:
indicates that the sodium (salt) content of this item is higher than the total daily recommended limit (2,300 mg). High sodium intake can increase blood pressure and risk of heart disease and stroke."

   (d)   Enforcement. The monetary penalty for a violation of this section is $200 dollars. Violations may be adjudicated at any tribunal operated by the Office of Administrative Trials and Hearings.

   (e)   Effective date. This section takes effect on December 1, 2015.

   (f)   Severability. If any provision of this section, or its application to any person or circumstance, is held invalid by any court of competent jurisdiction, the remaining provisions or the application of the section to other persons or circumstances shall not be affected.

(Added City Record 9/16/2015, eff. 10/16/2015)