clock menu more-arrow no yes

Filed under:

Marc Murphy Calls Letter Grade System Unconstitutional

New, 54 comments

Earlier today, the Dept. of Health revealed that a controversial new plan forcing restaurants to publicly post inspection letter grade had passed and will be implemented this July. They argue that the posted letters will make for cleaner restaurants and better informed diners, as a similar law has done in LA for over a decade. Meanwhile, Marc Murphy, owner of Landmarc and an outspoken opponent of the plan, writes in to explain exactly why restaurant owners think this move is the worst:

Firstly, we believe that the mandatory posting of a letter grade, against the wishes of the business owner, and adopted as a rule by the Board of Heath and not a statute by the City Council, raises significant and serious constitutional issues, especially in light of the recent Supreme Court decision upholding corporate free speech rights under the 1st Amendment to the US Constitution.

Second, should letter grading go forward, the grade must be limited to serious and critical food safety related violations only. The difference between an A or a B should not be based on leaky faucet, an uncovered light bulb, a small work area in the kitchen or a design concern addressed for the first time well after a restaurant has opened and has passed its pre-opening design inspection. After 10 years of inspections, if an inspector decides that an additional sink is needed, that cannot be part of your grade. There is a long list of non food safety items currently included in the proposed scoring system that if remains part of a letter grade, would simply be misleading to the consumer and would inevitably lead to competing window signs... theirs and ours.

Third, if an establishment gets a B and elects not to post the grade pending the re-inspection, that re-inspection must be limited, for grade purposes, to the items cited in the original inspection. If all of the cited items are corrected, then it should be an A grade for that original inspection. If the second inspection finds new violations, then that should wait for a re-inspection as well. After all, the purpose here is not to play a game of gotcha, but to have restaurants correct any violations. And all too often, what is a violation to one inspector is not to another.

Fourth, even when an operator upon re-inspection gets a grade it is not happy with, the operator must be able to request an additional inspection as soon as it is ready to prove improvement and should not have to wait until the next scheduled inspection...even if the cost of the inspection is born by the operator. An inspection is a snapshot in time. As such, it is unfair to leave an outdated grade on a window when it may not reflect current conditions.

Fifth, all food service establishments must be included if any of us are to be. There is no satisfactory public policy to explain the exclusion of street food vendors, school cafeterias, soup kitchens and the like. However, if you persist in making exemptions, then one obvious group that should be exempted are bars and nightclubs that serve no food or do not prepare any food on the premises. In those cases the letter grade will have very little meaning as it relates to your concern about food safety.

Sixth, our industry believes that the most effective method for ensuring compliance with food safety codes is through education and cooperation. WE are in the hospitality business. We are more concerned than you are with our patrons' health and safety and have no desire to not comply. But the inspection process is long, complicated and subject to human error and differences of opinion not only between restaurant and inspector, but as we have explained, between different inspectors viewing the same kitchen differently.

The DOH has tried fining the industry into compliance, which clearly has not worked in that the amount of finds has increased each year into the many millions of dollars, rather than decreasing as it should if compliance was up. This theory therefore, gets a big F. Now you are attempting to embarrass us into compliance. Give that the inspection process is not conducted by a computer, but by humans subject to many individual vagaries, and includes many minor items not directly related to food safety, this will not work either. You will simply hurt the reputation of perhaps thousands of excellent restaurants in NYC and damage our standing as a world class tourist attraction. Therefore, we urge that this proposal have a two year sunset provision and that prior to the sunset date, an independent examination is conducted to determine its effectiveness. By that time we hope they will finally follow our recommended theory of compliance, one used successfully in hundreds of localities throughout the nation, that of education and cooperation.

Of course, some people in LA—the Jonathan Gold-ites—will only eat in C restaurants, reasoning it's a sign the food will taste good. Again, readers, especially those of you who dine out in LA, feel free to chime into the comments.
[photo credit]

Sign up for the newsletter Sign up for the Eater New York newsletter

The freshest news from the local food world