And even as fines were going up, so were the number of foodborne-illness complaints. Denver recorded 144 such complaints in 2012, compared to 128 in 2011 and 112 in 2010. And most incidents were small, although a handful involved multiple complaints (see graphic). "In the world of public health, using the number of complaints as a measure of public health is a notoriously dicey business and is not considered a reliable measure of the actual cases of illness," Danica Lee suggests. "Issues like marketing and visibility of the health agency, current stories running in the media, outbreaks of other non-foodborne illness in the community, and many other factors can contribute to the number of complaints received. It's very widely accepted in public health that complaints do not represent a good measure of illness in the community; a measure that would be much more closely tied into public-health measures is the number of violations per inspection."
Fines, on the other hand, can have a direct relation to enforcement, McDonald points out. Civil penalties were "significantly increased because they were woefully too low; there wasn't enough enforcement in the past," he says. If restaurateurs know they are going to be fined, "they're more apt to comply with the enforcement rules," and that will cut down on critical violations, which will cut down on safety hazards. "We know that critical violations can lead to foodborne illness, because the Centers for Disease Control statistics prove that," he notes.
Frank Bonanno
Pete Meersman
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But as the fines increased, so did complaints from restaurants — particularly restaurants owned by Frank Bonanno. "Frank has a challenging personality," McDonald says. "I would encourage him to spend as much energy focusing on correcting violations and keeping them corrected and less time on arguing and fighting with health inspectors, whose job it is to make food-service safety a priority."
"If I put myself in Bob McDonald's shoes and asked myself how I would go about raising revenue for the city with the most minimal backlash, the answer would be to get rid of the postings, fine restaurants more money, and the public will never know," Bonanno counters. "The department doesn't want to scare people away from eating out, because if people aren't eating out, the city isn't making any money."
"The biggest complaint that we hear from chefs is that they don't think the fine amounts are proportionate to what they perceive to be the seriousness of the violation — and there's the perception that inspectors are nitpicky," Lee notes. "But our investigators have a tough job, and we focus on education and documenting the violations that we see, because that's our responsibility to the public."
But the fines were the focus of the conversations that started in early 2012 about possible changes. "We had numerous meetings with the mayor's office to talk about the effectiveness and fairness of the current system, and how we could all work together to shift the focus of the inspection process to restaurant operators who wouldn't make the necessary changes, or were in need of education to address the problems within their establishment," says Meersman.
One of the most pervasive problems, he explains, was Denver's health-inspection form, which includes eight "critical item" categories: Food Source, Personnel, Food Temperature Control, Sanitation Rinse Temperature, Water — Sewage — Plumbing Systems, Hand Washing and Toilet Facilities, Pest Control and Toxic Items. Each category also has subcategories — an "unapproved source," for example, under the Food Source heading, or "soap or drying devices unavailable" under Hand Washing and Toilet Facilities. Those categories are far too broad, says Meersman.
There are 36 types of critical violations, and under any of those, "there are multiple code violations that would qualify for one type of violation," Meersman explains. For example, there's a violation pertaining to "food from an unapproved source" — a subcategory under Food Source on the inspection report. "If an establishment had molluscan shellfish not in the original container on its first inspection, it would be a 1 (a) violation," says Meersman. And on the "establishment's second inspection within a twelve-month period, food in hermetically sealed containers from an unapproved food source would also be a 1 (a) violation. Under the system in place prior to this year, those infractions would be considered a 'repeat violation,' and the establishment would receive a civil penalty."
Under the revised system introduced on January 1, "each of the 36 types of violations is broken down to the specific food-code section," Meersman says. And in order for a food-service establishment to garner a "repeat violation," it must violate the same food-code "item" within a twelve-month period. "It has to be the exact same violation, rather than the same category of violation," he notes.
The DEH also agreed to shift its "risk-based inspection frequency system" to reduce the number of inspections on facilities that haven't had a foodborne-illness outbreak. The minimum number of inspections of full-service restaurants — Bonanno's restaurants, for instance — will now take place two times per year; medium-risk facilities will be inspected a minimum of once a year; and low-risk facilities — a Starbucks, for instance — will be inspected at least once every eighteen months. The changes "will free up inspectors to focus on higher-risk establishments and allow more time for consultative visits to help operators with problem areas and/or staff training," Meersman notes.
