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Health grade judges: City making it harder to dismiss violations

Restaurant grades

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The union representing judges who preside over health-inspection hearings is suing the city, claiming officials are making it harder for the judges to dismiss violations they believe should be dropped, amNewYork has learned.

Restaurant owners who disagree with the health-inspection violations that determine posted letter grades and fines can contest them in front of a judge at the Office of Administrative Tribunals and Hearings. The overwhelming majority of eateries who fight the violations get at least some of them tossed by judges. Some had all of their violations dismissed.

Sharon Lewis-Williams - who oversees the judges at OATH - informed them in a November email that judges were required to "see [her] prior to dismissing [notices of violations] in their entirety," a policy she said was necessary to "ensure consistency" in the department. OATH confirmed the email, which was obtained by amNewYork, was sent by Lewis-Williams, but she did not return messages for comment.

"No judge has been told how to decide a case by the Health Tribunal's Managing Attorney," an OATH spokeswoman said.

Karen Selvin, an attorney for the city, said, "we believe that the case lacks merit."

But the United Federation of Teachers, the union representing the judges, said the policy hampers judges' ability to rule independently.

"Under this new procedure, the findings, conclusions and decisions of the presiding [hearing officers] are subject to review, and potential revision by a supervisor," the lawsuit states. "This new procedure violates not only the letter of the law but also the consistent practice followed for years in properly implementing that law, under which the presiding [hearing officer] alone made those determinations.”

Howard Schoor, a UFT spokesman, said many judges won't stand up to supervisors because "they are fearful for their jobs."

“If they do not do what they are told to do, they will be immediately taken off the calendar,” said Schoor. “They will not be adjudicating anything.”

Longtime judges told amNewYork the new policy requires them to jump through hoops if they want to dismiss violations — and that judges are sometimes discouraged from doing so.

"I know judges who have been wrestling with decisions for weeks," said one of the judges, who spoke on condition of anonymity because they feared retaliation from supervisors. "On one hand, they know the case ought to be dismissed. But on the other hand, the supervisor will not let them do it."

One concern of the judges, as echoed in the lawsuit, is that officials are only checking “decisions which impact negatively on financial considerations of interest to the City.”

City Council Speaker Christine Quinn was among several council members to question the health department’s restaurant inspections earlier this month.

“While I support restaurant letter grading and the purpose that it serves, I am very concerned that the inspections are inconsistent and have become a revenue generator for the city at the expense of restaurant owners,” Quinn said.

Health Commissioner Thomas Farley dismissed her accusations, saying his focus is on restaurant safety. But he told council members the department has not seen data from the restaurant tribunals, which were put under the control of OATH instead of the health department last July.

Records show the city has seen a major boost in fines collected in recent years. Health fines jumped from $27.6 million in 2007 to $32.7 million in 2010, when the letter-grading system began, according to the health department. Fine revenue topped $42 million last year.

David Goldin, the city’s Administrative Justice Coordinator who was named in the lawsuit, declined to discuss the policy when reached by phone, though he said in an emailed statement that “Reviewing decisions before they are issued is a standard practice of Administrative courts.”

Margaret Finerty, who co-chairs a task force on judicial selection at the New York County Lawyers’ Association and is a former city judge, said judges should be independent to make decisions as they see fit.

“If the judges feel they need to get the seal of approval from someone other than themselves as to how to decide a certain case, that’s not the way it’s supposed to work,” said Finerty, adding that she has not spoken directly with any judges at the health tribunal. “The judge is supposed to hear from both sides and then objectively, fairly apply the rules to the facts as they believe them to exist, and make a decision.”

Advocates for city restaurateurs said they were “concerned” by the internal memo.

“The judges should not feel pressured to sustain or dismiss violations,” said Andrew Rigie of the New York State Restaurant Association. “They should be looking at the letter of the law and adjudicating accordingly."




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