" The inspection was not going well for Doma, a cafe in the West Village. The visitor with the clipboard, Mark Nealon, noted that the front door had been left wide open - grounds for a two-point violation and a $200 fine - and that trash was bundled on the stairs leading from the street to the basement kitchen. "
Now, near some shelves, he spotted a gap, not even one-sixteenth of an inch wide, around a pipe jutting from new drywall.
"They'll cite you for that," he told a co-owner, Evie Polesny, explaining that holes in walls and ceilings, potential conduits for pests, are among the most commonly cited health and safety violations in restaurants. "So what you do is, you get that expanding foam stuff. You can just spray it in."
Mr. Nealon, an energetic, bright-eyed man, is not an inspector for the city Department of Health and Mental Hygiene. But he was for three years, before taking up his current profession as a food safety and sanitation consultant, helping restaurants get in shape for the sharp eyes and styluses of computer-carrying bureaucrats.
He is part of an almost entirely unregulated cottage industry that has evolved in New York to run interference with the health department, even pleading the restaurants' cases at the administrative tribunal where violations can be reduced or dismissed.
Mr. Nealon, 43, who has been doing business since 1993 as S.A.F.E. Restaurants Consulting, said that demand for his services had been steadily rising in recent years and that it always received a lift from changes in the inspection system.
The latest change came three weeks ago, when the health department voted to use letter grades to rate cleanliness in the city's restaurants and require owners to start posting them in July.
The new system is likely to raise the stakes for each inspection and prompt restaurateurs to try to improve their scores by seeking a repeat inspection.
Like the expediters who have long helped New Yorkers negotiate the byzantine requirements of the Buildings Department, many of the restaurant consultants are former city inspectors, familiar with the health code and the people who enforce it.
Others, with connections in immigrant communities, got their start because they were fluent in English, said Sylvia Feinman, an administrative law judge who has presided in the health department tribunal for 18 years. Still others have a background in restaurants.
The consultants say they are needed because owners can be overwhelmed by all it takes to run their enterprises.
"A lot of people get into this business without realizing the magnitude of it," said Judi Hill, who began consulting about nine years ago with a friend who had been a health inspector.
"Somebody had a friend with a bar or a restaurant, and maybe saw how much money they were making and decided to give it a try."
Across the country, restaurants are increasingly hiring sanitary consultants as concern over food safety continues to intensify, many people in the food service industry said.
But the emphasis in New York on preparing for inspections and challenging violations is unusual, they say - a result of how large the city's health department is and how actively it scrutinizes restaurants.
Though the number of consultants in New York appears to be rising, a precise figure is difficult to come by.
The health department began requiring that consultants register their names and contact information only last year; as of March 16, the department listed 104.
They typically represent about one-third of the restaurants appearing before the tribunal, and display varying degrees of competence in doing so.
"There's people we have a tremendous amount of respect for," said Thomas Merrill, the department's general counsel. "Some of them I don't know if we'd all hire if we had a restaurant."
In its efforts to protect New York diners from lax hygiene practices, like those exposed in 2007 at a KFC/Taco Bell in Greenwich Village overrun with rats, the department conducts surprise inspections at least once a year at each of the city's roughly 24,000 restaurants.
The inspectors issue punitive points for infractions like food kept at the wrong temperature, cutting boards with potentially bacteria-harboring grooves or a lack of proof that the croissants were made without trans fats.
The number of points, and the severity of the penalties, vary with the offense; according to the department's guide, a "woman in gray slacks carrying poodle on service line" is much less serious than a "woman in gray slacks carrying poodle on service line, man with mustache with a parrot on shoulder at the salad bar, a child with a rabbit at the dining table and a woman with a cat on a leash at coffee bar."
But the judges who sit on the tribunal have tremendous discretion, Judge Feinman said; they can combine violations, lower the recommended fines or dismiss them.
"When you need an intermediary to deal with a government agency, it means that there's something wrong with the way that entity operates," said Daniel J. Castleman, a former chief assistant in the Manhattan district attorney's office who is now a managing director at FTI Consulting, an investigations firm.
"The only reason you want one is because he or she can saunter up to an ex-colleague and say, 'Hey, can you do me a favor?' "
Legal experts said such a porous system opened the door to corruption.
Mr. Merrill, the health department counsel, said officials there had seen no evidence of corruption among the consultants, and had begun registering them to hold them more accountable in cases of misconduct.
But at least one consultant who played a role in a wide-ranging bribery scandal at the department is still representing clients there.
The consultant, Steve Vassilakos, was charged in a 1988 sweep of more than 40 department inspectors, supervisors and consultants that led to convictions, mass firings and a near-halt in restaurant inspections for more than a year.
Testifying in the trial of a health department official who was convicted of extorting money or meals from restaurant owners in exchange for a passing mark, Mr. Vassilakos said he had given that official "loans," which were never repaid, on behalf of the restaurants he represented.
Reached by a reporter late last month, Mr. Vassilakos was reluctant to discuss the matter, saying it was "20-odd years ago." But he did say he was never tried in the case. "It was a different time," he said. "There were different concepts. There were different people."
Consultants' fees can range from $200 to represent a restaurant before the tribunal to several thousand dollars to help a place closed for violations win permission to reopen.
Many restaurateurs say the expense is worth it, given the complexity of city rules and the idiosyncrasies of each inspector.
"It's very difficult to know all the rules, and it's very difficult to know what rules are going to be focused on," said Eric Bromberg, who with his brother, Bruce, runs the chain of Blue Ribbon restaurants and a consulting business designing and operating kitchens for others.
"Protecting the public is certainly correct, but some things contradict each other, and some things aren't necessarily easy to handle or sensible."
Doma, for instance, on Perry Street, received a failing rating last month after years of passing marks. The night before the inspection, Ms. Polesny said, some cooks had gotten drunk and left a mess. Workers from another part of the building left a door open, allowing the landlord's cats - as bad as rats, in the eyes of health inspectors - into the kitchen.
Then two inspectors arrived, one training the other. Two sets of eyes, leading to a potential $4,500 in fines.
Ms. Polesny and her husband, Michael, turned to Mr. Nealon, who has worked with them for years, to help prepare for the inevitable reinspection. They have now undertaken a costly renovation, going beyond the health code requirements, to ensure that they can pass and continue to operate.
But even Mr. Nealon seems flummoxed at times by the logic of the health department, which he says uses the inspections to raise revenue rather than educate restaurateurs - a charge department officials deny.
He said he knew of one restaurant that was cited for allowing kitchen workers to talk to one another. The inspector's fear, he said, was that the workers' saliva could end up in the food.
"The inspectors look at kitchens as if they were operating rooms," Mr. Nealon said, "and that's just not the way to do it."
Source: NY Times
Sunday, June 27, 2010