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Restaurant industry New food code raises concerns

Portsmouth Herald - 9/2/2017

PORTSMOUTH - The New Hampshire Lodging and Restaurant Association is urging Portsmouth restaurant owners to lobby the City Council for a delay in enacting a new food code, while citing several concerns.

Mike Somers, president and chief executive officer of the organization, wrote a letter to all restaurant owners urging them to contact councilors to ask for a six-week delay in enacting the new food regulations and request the City Council hold work sessions to study them. The council passed first reading of the codes and a second reading is scheduled for Tuesday.

Somers said his group is pleased the city is proposing adoption of a 2009 federal food code he said is based on "good food safety science." He said the city is also proposing pages of amendments to federal and state food regulations, some of which he said his group doesn't understand, so it's unsure if it should support or oppose them.

"Before we rush into something, let's understand what we're dealing with here," he said, while noting the federal food code is 700 to 800 pages in length.

Portsmouth Health Inspector Kim McNamara said the proposed new ordinance is 10 pages long, "to replace the old 8-page ordinance."

Somers said one thing that concerns his group is the proposed food code would require "full blown" compliance with health codes if a restaurant changes hands, which could simply mean a new investor gets involved. He said the industry norm is a "true change of ownership."

Another concern in the proposed code is a requirement that outdoor decks be enclosed overnight, Somers said.

"We'd like to have a better understanding of what is being proposed," he said.

McNamara said, "It is absolutely untrue that we are proposing that outdoor patios be enclosed."

She explained, "What is probably being referred to is proposing a new amendment that outdoor bars - only the behind-the-bar areas where food and food service equipment is located - be protected from rats, construction dust, intentional or non-intentional contamination or adulteration during hours of non-use. It is already a food code requirement that enclosures or

other effective means of protection are in place. This simply addresses that care be taken to ensure the protections are in place when no one has oversight of the bar/food service area. All of our current licensees are already in compliance. If you walk along the decks on the waterfront, you will see they all close up tightly against rodents, pollution, unauthorized people, insects, birds, etc., when they are not in use."

The Lodging and Restaurant Association also thinks the suggested food code should include a provision that establishes an appeals process for restaurateurs who disagree with anything imposed by the Health Department.

Portsmouth attorney Jon Flagg has gone to the Superior Court on behalf of the Gas Light Co. restaurant to appeal an order that its deck bar be enclosed because there is no local appeals process, he said, while suggesting enactment of a local Board of Health. The Gas Light's legal dispute is on hold and the deck was allowed to open for the summer season without an enclosure.

Flagg said when the city issued an order for the Gas Light deck enclosure, owner Paul Sorli was told it was the law, while the city now seeks to make it a law.

"The proof that it was not true is that (the city) is proposing this law now," he said. "Health regulation in Portsmouth is the Wild West."

Flagg said if there were an appeal process in place in the city, he wouldn't have had to take the dispute to court.

McNamara countered, "There is an extensive appeal process already in place and we are not proposing to amend it." She said all current food licensees "are already in compliance, because the 2009 FDA food code is currently state law and has been applied in Portsmouth for years."

"What is being proposed is that food, fire and building codes be adopted directly, so we do not have to continue to rely on the state timelines for code adoption," McNamara said. "The food code alone, however does not cover every type of food service business. For example, food processors are exempt from the food code. They are regulated by a completely different set of federal regulations found in the code of federal regulations. The state addressed this by drafting their own food processor rules in accordance with the CFRs. We are simply proposing to keep those in place."

The health inspector said the proposed amendments will eliminate items irrelevant to Portsmouth, like regulating bake sales. She said they add relevant content including a provision to allow business owners the choice of whether or not to allow dogs on outdoor patios.

Deputy City Manager Nancy Colbert Puff said the current ordinance says the city should follow state regulations and the proposed amendments do the same, but are more specific to Portsmouth.

McNamara said she hopes for a good turnout from the food service industry at Tuesday's City Council meeting "so they can get accurate information first hand." She added she's also available to answer any questions from food-service businesses directly.


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