Prior to 2010, the inspections were numerically-based evaluations that scored for "critical" violations -- infractions that could get a restaurant shut down -- and "non-critical" violations that weren't severe enough to warrant a fine.
Under the current system, restaurants are inspected for public health violations, transgressions that can cause an immediate health threat and are serious enough for the city inspector to shut down the restaurant if the issue isn't immediately addressed, as well as for "critical violations" like the presence of vermin and the holding of food at improper temperatures, and finally for general violations, a long list of more minor no-no's such as improper thawing techniques and unclean bathrooms.
Many of the new general violations directly target the grey areas and unspoken practices that restaurateurs and staffers have abided by for decades, like not wearing gloves when serving a draft beer (few wear them) or preparing food with one's bare hands -- both of which violate the city's health code. Food workers have found ways to work around these new requirements, sometimes quietly, other times more defiantly.
For instance, restaurateur Scott Rosenberg, owner of the famed Sushi Yasuda in Manhattan, openly ignores DOH directives that say all food handlers must wear gloves when preparing food. Rosenberg is passionate about the traditions of sushi-making, and he feels that gloves impede this tradition and jeopardize the taste of his product. "Of course we want diners to be protected," he tells The New York Times. "But the craft of sushi requires a degree of precision and exactitude in making thousands of cuts -- microslicing with speed, and in quantity -- and the use of gloves makes that impossible." Despite his dedication to tradition and accuracy, Rosenberg recently experienced the culinary seppuku of having to throw away a $10,000 piece of tuna because an inspector felt it was improperly handled.
Some violations are more difficult to prevent, however. For example, section 81.20c of the state's code says, "Plumbing pipes shall be installed and maintained in a manner that prevents waste water, including condensation, from contact with food or equipment." Essentially, this standard targets any and all condensation, including accidental and natural runoff from coolers and refrigerators.
Most industrial refrigerators and coolers, despite advances in engineering, still do leak water, which may be non-existent one day, and inconveniently appear the next when an inspector is in house.
Is cooler condensation dangerous to the consumer? Most food professionals would say absolutely not, that the runoff is a natural part of operating an enormous machine that keeps food fresh. It is minute indiscretions like these that restaurant owners feel are unpreventable and unimportant to patrons.
"No consumer cares about a leaky faucet or a rag in a bucket. They definitely don't care about the lighting in a restaurant," says Robert Bookman, counsel to the New York Nightlife Association. He thinks that these non-critical violations are destroying the validity of the inspection system and wreaking havoc on already overburdened restaurant owners. "Restaurants are much more interested in keeping a clean kitchen than the health department," he says. "There's no money in a dirty kitchen."
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The Mayor and the DOH, for the most part, have been unapologetic and indiscriminate in their enforcement of the new grading rubric. They've kept their pledge to protect New Yorkers, even if it means targeting New York institutions and drawing the ire of more refined diners.
Sardi's, a New York City theatre district landmark since 1927, was last year forced to stop offering its free cheese pot to revelers when a health inspector came and cited them for having "food not protected from potential source of contamination." The pot had been a tradition since the restaurant opened in 1927, and as far as management is concerned, no one has ever complained of illness.
In another high-profile incident involving the Health Department and a famous New York landmark, inspectors last year warned the Algonquin Hotel that it could no longer allow its in-house cat, Matilda, to roam around the lobby, which has been a tradition since the 1930s (with different generations of cat, of course). The cat, they say, was seen approaching areas where food and beverages were being served. The hotel installed an electric fence to keep the cat out of dining areas and avoid a DOH citation, but visitors still bemoaned the end of a tradition.
Cheese consumption has also been disputed under the new, more rigorous inspection system. The rubric strictly prohibits non-protected food being allowed to sit at room temperature where bacteria can grow, but cheese connoisseurs and chefs will tell you that the best cheese is not meant to be served cold. Instead, cheese is best when it has been left to sit out and soften up.
Like Scott Rosenberg and Sushi Yasuda, restaurants specializing in French terrine also face an ethical conflict in serving their signature dish. Do they serve it warm and soft like the tradition states, or do they keep it icy cold to stay in line with DOH protocol? Unlike Rosenberg, Table d'hôte owner William Knapp has decided to serve his restaurant's terrine cold even if it bothers customers who come in expecting it to be warm.
"The department says that's how it has to be done," says Knapp to The New York Times. Table d'hôte currently has an "A" grade and Knapp doesn't want to do anything to jeopardize that. If he was caught serving warm terrine, a seven-point temperature violation, his restaurant could be downgraded to a "B." "Some customers might think twice before dining in a B restaurant," he adds.
High-profile incidents haven't always adversely affected restaurants, however. Per se, a three-star Michelin rated restaurant whose owner is a friend of Mayor Bloomberg's, had its grade quietly (and some say underhandedly) changed from a B to an A after a call was placed by the restaurant's manager to the city's Bureau of Food Safety. Only when the story was reported by The New York Post was it explained that the Bureau's executive director decided to knock down violations for a mishandled ice tray and an employee not washing her hands after rules about ice were "clarified" and the inspector admitted to walking out of the bathroom before the employee exited.
Department officials claim that by dialing a phone number displayed on all reports and immediately protesting its grade, Per Se took a route available to any restaurant, whether it's a $1 pizzeria or a Michelin establishment. Bookman, however, told the Post that he's unaware such a provision even existed. "I've never heard of a provision where you could challenge aspects of the inspection before a hearing," he said. "I'm thrilled to learn of it because I know of hundreds -- if not thousands -- of people who will take advantage of it.
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Other statistics released by The New York Times indicate another flaw in the grading system: that the differences between an "A" and a "B" are often minute. In 2011, the Times analyzed thousands of inspections and revealed that out of 2,114 restaurants that received A's, only 381 scored a perfect zero, which is the best possible score. 1,012 restaurants, on the other hand, scored 12 and 721 scored 13, which barely qualified them for an A grade. Concluding, the Times stated that the data suggests, "Inspectors may be disproportionately likely to assign restaurants a just-made-it A score than a just-missed B."
Then this year, Daniel Ho, a law professor at Stanford, studied the scores of 500,000 inspections of 100,000 restaurants from eight different states, including New York City. Ho found that the city's grading system actually shifts inspection away from the worst offenders by allocating some 14,000 inspections to B-range grade resolutions.
Additionally, Ho highlighted the great variability of the inspections and the inspectors. In 2009, an audit by the city comptroller office revealed that 67 inspectors who examined 100 restaurants in 2008 had average ratings ranging from as low as 15 to as high as 50. Along with the fact that New York's system has more inspectors (180), more violations to score, and wider point ranges for individual violations than any other city, Ho concluded that the DOH's grading program "communicates little about future cleanliness" and "diverts attention from the most delinquent."
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Despite claims from restaurant owners and outside experts that the system is flawed, Mayor Bloomberg insists that it's here to stay. He's conceded little ground to restaurateurs, and he's gone to the press numerous times defending his system. "They think it's O.K. to have mice and roaches and dirt and not have people wash their hands before they come back from the bathroom. That's just simply unacceptable, and their complaints are going to fall on deaf ears, I can tell you that. We're not going to change," he said during a staged press conference at a Bronx restaurant in March.
Even if the Mayor and his administration stand behind their reforms, some health and restaurant experts would like to see the system's gradations change. Why, they ask, can losing one point, say for a small crack in your ceiling, make the difference between a B and an A? "From an industry perspective, we think the system should be pass or fail," says Bookman. "Gradations give a meaningless, non-reflective snapshot."
Dr. Tierno, who supports the idea of health inspections but disagrees with the current system, echoes the industry's frustration about the petty differences between letter grades. While Bookman would like to see a pass/fail model, Tierno instead advocates for more descriptive gradations. "There should be a range and flexibility to characterize restaurants properly," he says. "An A should be on a higher plane without the slight differences we have today."