A much-feared “B” grade. That’s what Alessandro Ancona’s Brooklyn restaurant, Lola’s Tapas Bar & Mediterranean Trattoria, received after a March 2014 inspection from the city health department. So Ancona did what many of his fellow restaurant owners do: He appealed the inspection results.
After pleading his case to an administrative law judge, he sat in the waiting room. Fifteen minutes later, a woman called out the address of his restaurant from behind the glass window.
As he looked at the paperwork, Ancona smiled slightly. Beneath the verdict was a white page with a bright blue “A” and the name of his restaurant.
“I was lucky,” he said.
“Lucky” may not be the right word to describe Ancona’s experience with his restaurant, which he closed in November. Routine might be a better description.
Between January 2013 and April 2014 restaurants appealed the results of more than 13,000 graded inspections, and more than half of those appeals resulted in an improved letter grade for the restaurant, according to data obtained by The New York World.
Some of the most commonly dismissed violations include the existence of conditions “conducive to vermin,” failing to store food at a proper temperature, and failing to properly protect food from potential contamination during storage.
Interviews with restaurant owners, consultants, industry experts and judges point to a host of possible reasons for the high number of overturned violations and the resulting letter grade changes. Many suggest that health inspectors conduct overly aggressive inspections to generate revenue from fines. Others point to the fact that inspectors usually don’t attend the appeal hearing to defend the violation allegations, making the process inherently lopsided.
New York City implemented the letter grade system in 2010 in an effort to make the results of inspections readily available to the public and to put pressure on restaurants to maintain a clean environment.
A point value is assigned to each violation. If the total score is 13 or less, the restaurant receives an A. If it’s 14-27, it’s a B. Anything higher results in a C.
Four years into the program, nearly 90 percent of New York City’s more than 24,000 restaurants have an A hanging near the front entrance. Thousands of those A grades are the result of the appeals process.
Margaret DeMarco, whose family has owned Di Fara Pizzeria in Brooklyn for 49 years, isn’t surprised that over half of appealed inspections result in higher grades.
“Inspectors don’t give you the opportunity to say why something is the way it is,” she said.
For example, if an inspector comes five minutes after a cheese delivery, the cheese will not yet have cooled to the appropriate temperature, she said. But rather than listen to an explanation from the restaurant, the inspector will write it up as a violation. Other restaurateurs have shared similar experiences.
Last year, Di Fara’s grade went from 37 points, a C, to 25 points, a B, after contesting the inspection through the tribunal. Di Fara’s was inspected once again later in 2014 and that inspection resulted in an A, the grade the restaurant still maintains.
The appeals, formally known as health tribunals, are administered by the city Office of Administrative Trials and Hearings (OATH).
OATH’s health tribunal holds about 140 cases a day. Inspectors from the Department of Health and Mental Hygiene appear to defend their work less than 4 percent of the time, according to a representative of OATH.
And while some restaurant owners, or the consultants who often appear on their behalf, present evidence during the hearing in an effort to show that the violation was written in error, in at least one case witnessed by a reporter, violations were dismissed after nothing more than an apology.
The health department says that it is not concerned about the high percentage of lost appeals and the resulting letter grade changes.
“The majority of grades issued to restaurants occur either on initial inspections, or on reinspection and do not get contested,” said a health department spokesman. “OATH’s figures refer only to contested reinspections.”
However, over a 16-month period starting in January 2013, restaurants were able to improve their letter grade through the hearing process more than 7,000 times according to data provided by OATH.
Of those who get something other than an A through the regular inspection process, the “vast majority” appeal their inspections, said James Versocki, counsel for the Greater NYC chapter of the New York State Restaurant Association, a trade group.
During the March 2014 inspection of Lola’s Tapas Bar & Mediterranean Trattoria in Cobble Hill, the inspector recorded a handful of violations totaling 18 points, which meant a B grade. The inspector gave the restaurant staff two signs: one with a “B,” and one that said “Grade Pending.”
Like many restaurant owners, Ancona chose to hang the “Grade Pending” until his hearing. If the judge had upheld all the violations, he would have had to post the B grade.
During the hearing, Administrative Judge Anthony Esposito went through a standard preamble, telling Ancona he had the right to an attorney and a translator and to request that the inspector attend the hearing.
Esposito then began going through the violations documented by the health inspector.
There were mouse droppings, “one tong stored on handle of oven making it possible for utensil to touch floor when opened,” and a hole in the ceiling, which was marked as “conducive to vermin.”
Ancona said all of these problems were corrected.
Next, there was condensation inside the fridge. Ancona explained that they had placed an aluminum pan in the fridge to catch a leak and that none of the water had touched the food. The leak has since been fixed, he added.
Finally were the vent hoods, which the inspector said were covered in grease and grime. Ancona said he has since called someone to clean them.
Esposito asked Ancona if there is anything else he wanted to say.
“I’m very sorry that the place wasn’t as it is supposed to be at the time of the inspection,” Ancona said. “I wasn’t there at the time, so employees do what they want and I have to pay the consequences. But I promise it won’t happen again.”
Esposito sustained the mouse droppings charge, the hole in the ceiling, and the grime and grease on the vent hoods. He dismissed the charge with the tong and the condensation in the fridge. Ancona’s B became an A.
Although the burden of proof at the tribunals falls on the health department, its inspectors are not required to be present at the hearings and most often are not. If a restaurant does request that the inspector be present, the inspector will usually participate via webcam. Restaurants are encouraged but not required to bring evidence, such as photographs or receipts.
Sometimes, it’s the word of the inspector against that of the owner.
The managing attorney of the Manhattan health tribunal, Marco Wright, who started out as a judge four years ago, says that this is not always the case. “It happens less often than you’d think,” he said. “Sometimes the facts are undisputed.”
But when it does happen, Wright compares the role of a tribunal judge to that of a jury when explaining how he decides whom to believe when the two sides have differing stories.
“They’re finders of fact,” says Wright, who has a background as a criminal defense attorney. “If the plaintiff gives one version, the defense gives another. Basically it’s your life experience that determines what you find credible and what you don’t find credible.”
He also says that he takes into consideration whether the restaurant’s version is supported by outside evidence so that he doesn’t have to rely purely on a witness’s credibility.
Allan Lebowitz, a consultant who was representing Brooklyn’s Naim Kosher Pizza in front of Wright on an April afternoon last year, had come prepared with photos. But he also tried to appeal to the judge’s heart. When Wright asked him about spinach pizza that was kept out too long, Lebowitz held up a photo of the shop with an awning and a bicycle outside.
“To say the least, it’s a humble facility,” he told Wright. “I tried to teach them holding time but they don’t have the academic skills. They make delicious pizza, but they don’t have the academic skills to do that,” he said.
Once the hearing is over, Lebowitz gets the verdict: An “A” grade and a fine reduction of 30 percent. He seemed to think his plea for sympathy worked.
“He gave us the ‘A.’ He was a little gracious. You have to be kind to the fact that poor people are making a living,” he says.
Many restaurant owners grumble that the city pushes inspectors to hand out as many violations—and consequently fines—as possible.
This issue was raised at a City Council oversight hearing in 2012. At that meeting, the president of the union representing the inspectors, Fitz Reid, testified that inspectors were told to write up as many violations as possible. Reid, an inspector himself, suggested that promotions and dismissals might depend on how many violations an inspector cited.
Reid also said that many of the inspectors believed that the shift to the letter grade system was “revenue-driven.” He did not return calls for comment for this article.
At the height of the fines in 2012, the city made $52 million—an 87 percent increase from 2009, the year before letter grades, according to a report prepared by former public advocate Bill De Blasio.
In response to pushback from restaurants and politicians, the health department, under a new commissioner, announced a few changes in early 2014. Fines, which the department noted had already dropped from their peak, would be reduced by 25 percent. They would also be standardized at OATH: Judges would no longer have the discretion to determine the amount if a violation was upheld.
Meanwhile, thousands of restaurants continue to make the trek to the tribunals each year in hopes of getting violations dismissed to obtain that A grade.
As a restaurant consultant, Jimmy Baig works with the Indian and Pakistani restaurant communities, for whom he said language can be a problem in understanding the health code.
“Ninety percent of the time, I get what I want,” he said while waiting for the verdicts for the six cases he’d just defended on an April 2014 afternoon at the Brooklyn health tribunal. Wearing sneakers and shirt sleeves pushed up to his elbows, he’d already been to the tribunals in Staten Island and Manhattan that day. He usually handles 10 to 12 cases per day.
“It’s not that you come to deny everything,” he said. “You admit and fight for what you think is right.”