When it comes to restaurant grades, not all A’s are created equal.
Dozens of eateries had all of their health inspection violations tossed because of botched paperwork, automatically giving them an A and saving them thousands in fines, according to an amNewYork analysis of health tribunal hearings between July 2010, when the letter grading system began, and September 2011.
Kevin O’Donoghue, a partner at restaurant law firm Helbraun and Levey, said 90% of the cases he’d seen dismissed were due to an inspector error, like writing the restaurant’s name or address incorrectly.
“The judges will often just say, ‘There’s too much here and I can’t be sure this is the right,’“ said O’Donoghue, who has fought more than 100 inspections and has had a few totally dismissed. “A full dismissal is mostly going to come on the basis of there not being sufficient evidence to sustain the charges.”
Because it takes inspectors months to check all of Gotham’s eateries, more than a third of the restaurants that had their violations dismissed haven’t been re-inspected, leaving them with an A in their windows.
Of the 89 eateries to have their slates wiped clean, the data also shows that:
- Fifteen had failed those disputed inspections with a score of 28 or more.
- While 33 restaurants received an A during their next inspection, at least 23 failed their next time. Three were later closed for unsanitary conditions.
- Nineteen of them failed and fought other inspections during that time.
Judges who presided over the hearings did not return calls for comment. A spokeswoman for the Office of Administrative Trials and Hearings, which oversees the hearings, declined to comment on them, saying, “each case is unique.” A spokeswoman from the health department, which conducts the inspections, did not return calls for comment.
But it’s not only paperwork blunders that are getting grades tossed.
Martin Whelan, majority owner of midtown bar and restaurant Stout, said he was sent “through the roof” when an inspector gave it a failing grade last November for not having a sink next to their coffee machines. He said they had never been cited for that reason in five years of inspections, but immediately had a sink installed.
Whelan said the judge called the violation “ridiculous,” and dismissed all 55 points issued by the inspector. The restaurant earned an A on two follow-up checks.
Whelan likened the ordeal to getting pulled over by a cop hours after a taillight goes out.
“Here’s your summons. If you get it fixed, the judge will dismiss it,” he said. “And that’s what’s happening.”
Andrew Rigie of the New York State Restaurant Association said the fact that judges dismiss many violations is evidence there are flaws in the letter grading system.
“Points and letter grades do not mean anything,” Rigie said. "It’s the nature of the violations that you want to see.”