Dep’t of Health and Mental Hygiene v. Express Carts Corp.

OATH Index No. 1555/06 (May 9, 2006)

Respondents have committed serious, repeated and persistent violations of the New York City Health Code and the New York State Sanitary Code. Continued operation of the food service establishment would constitute an imminent threat to the public health and safety. Accordingly, it is recommended that the license be revoked and no future license be granted to respondents.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF HEALTH AND MENTAL HYGIENE

Petitioner

- against -

EXPRESS CARTS CORP. and MAUREEN BLANKE

Respondents

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REPORT AND RECOMMENDATION

CHARLES D. McFAUL, Administrative Law Judge

-1-

ANALYSIS

This proceeding was referred by petitioner, the Department of Health and Mental Hygiene, pursuant to title 24, sections 5-17(b), 7-02 and 23-05 of the Rules of the City of New York (RCNY). Respondent Express Carts Corp., a food service establishment, and Maureen Blanke, president of Express Carts Corp., are charged with posing an imminent threat to public health based upon serious, repeated and persistent violations of article 81 of the New York City Health Code and subpart 14-1 of the State Sanitary Code. Petitioner seeks to revoke respondents’ license (No. H26-1196468) to operate a food service establishment and that such license not be renewed.

A hearing on the petition was originally scheduled to be conducted on March 30, 2006, but was adjourned to April 6, then to April 25 and then to May 8, 2006. The adjournments were requested by petitioner in order to effectuate proper service of the petition and notice of hearing. Respondents failed to appear on any of the adjourned hearing dates, including the hearing held before me on May 8, 2006. Petitioner submitted proof of proper service of the petition and notice of hearing upon the respondents by personal delivery to the licensed premises and by certified and first-class mail to respondents’ mailing address of record with the Department (Pet. Ex. 1). See Health Code § 81.39 (e); Admin Code §§ 17-141, 17-148(a) (Lexis 2006). Such proof established the jurisdictional prerequisites for finding respondents in default.

In support of its case, petitioner submitted certified official records maintained by the Department's Bureau of Inspection (Pet. Ex. 2). My review of those records confirms that they establish the specifications set forth in the petition. Specifically, the records establish that on four dates between June and September of 2005, inspections of respondents' food service establishment resulted in the issuance of numerous violations of the New York City Health Code. The violations were sustained after hearings conducted at the Department's administrative tribunal and resulted in fines totaling $2,150.

By notice dated October 28, 2005, respondents were informed that due to the history of serious and persistent Health Code violations at their establishment, their license would be suspended and the establishment closed should they fail to pass inspection during the next twelve months. On March 24, 2006, respondents' establishment failed to pass inspection after six serious violations of the Health Code were found and the establishment was ordered closed as posing an imminent threat to public health.

FINDINGS AND CONCLUSIONS

1.Respondents were properly served with the petition and notice of hearing.

2.Respondents' food service establishment failed to pass inspections on four dates in 2005, for which numerous violations of the Health Code were adjudicated against them.

3.A compliance inspection conducted on March 24, 2006, found food present in the establishment that may be adulterated or otherwise unfit for human consumption in accordance with section 14-1.10(b)(1) of the State Sanitary Code.

4.The record of serious, repeated or persistent violations of the Health Code and State Sanitary Code supports a finding that respondents' operation of their food service establishment poses an imminent hazard to public health.

RECOMMENDATION

Based on the undisputed evidence of serious and repeated violations of the Health Code and the State Sanitary Code, I recommend that respondents' food service permit be revoked and that future licenses be denied.

Charles D. McFaul

Administrative Law Judge

May 9, 2006

SUBMITTED TO:

THOMAS R. FRIEDEN, M.D., M.P.H.

Commissioner

APPEARANCES:

JANET GALLAGHER, ESQ.

Attorney for Petitioner

No appearance for Respondents