Check, please! Keeping tabs on Denver's restaurant-inspection policy
In late 2007, Frank Bonanno, one of Denver's most successful restaurateurs, opened Osteria Marco, an Italian restaurant in the heart of Larimer Square. Above the sidewalk entrance squats a brass pig; just beyond the heavy doors is the garde manger station, which offers a peek into Osteria's culinary landscape — a panorama that includes artisanal meats and handcrafted cheeses, plates of antipasti and Sunday pig roasts. Just about every night commands a full house, with guests — tourists and locals alike — streaming through the entryway and down the sweeping staircase to eat, drink and mingle.
On Wednesday, March 28, 2012, the first complaint came in. The Colorado Department of Public Health and Environment received a call from a diner who had recently eaten at Osteria Marco and claimed to have fallen ill because of that meal. The CDPHE reported the call to the Denver Department of Environment and Health, the city agency that ensures Denver food-service establishments are in compliance with state and federal laws, as well as all city regulations.
The DEH sent investigator Thuy Vu and a rep of Denver Public Health to Osteria Marco; she initially noted that an "unknown pathogen" was the suspected culprit. But she would soon report that "based on interviews conducted by DPH, [the] suspected pathogen is norovirus or noro-like virus." According to the Centers for Disease Control, noroviruses are the most common cause of gastroenteritis in the United States, marked by such symptoms as vomiting, chills, diarrhea, cramps and fever. The CDC estimates that each year, twenty million cases of "acute gastroenteritis are caused by noroviruses"; that translates to roughly one in every fifteen Americans. The CDC also estimates that the norovirus is responsible for more than 70,000 hospitalizations and 800 deaths each year in the United States.
Bonanno was out of town when the trouble started. "It was spring break, and I was in Keystone with my family," recalls Bonanno, who received a phone call from Emily Schwartz, one of his operation directors. "Emily said something about the Department of Environmental Health raiding Osteria, and I told her to call my attorney and tell her to get her ass over there." Denver health officials were "demanding all of our OpenTable guest information, including phone numbers," he says, and also requesting anal swabs from several Osteria employees. "DPH conducted interviews of two ill employees, both of whom refused the request from DEH and DPH to submit specimen samples from rectal swabs and bulk stool samples," Vu noted.
In that same March 29 report, Vu detailed other critical violations she'd observed at Osteria Marco, including "bare hand contact on ready-to-eat foods, hands not washed as required, hand sinks used to dump customer water, use of unpasteurized raw shell eggs in cocktails, improper cold holding temperatures of potentially hazardous foods, and evidence of pests (fruit flies/phorid flies)." Moreover, she noted, the "general manager also reported that nine employees (kitchen and waitstaff) called in sick within five days," in addition to "another large party" that "called the facility directly to complain about a separate, unrelated incident of foodborne illness."
A follow-up inspection of Osteria Marco on March 30 resulted in a cease-and-desist order for bare-hand contact on ready-to-eat foods, as well as a request for the name of every other Bonanno employee who worked not just at Osteria Marco, but Mizuna, Bones, Luca d'Italia, Lou's Food Bar, Russell's Smokehouse and Green Russell. "During the course of the March 29 visit to Osteria Marco to investigate the illness complaint, the investigator learned that there were a number of employees who worked at Osteria Marco and other Bonanno Concepts facilities who had recently been ill," explains Danica Lee, food program manager at DEH and an official with whom the outspoken Bonanno already had a rocky relationship. ("Yes, Danica, I'm mean" was the start of one of Bonanno's blog posts in May.)
Bob McDonald, the city's director of public-health inspections and a twenty-year veteran of the DEH, says his inspectors had every reason to look into Bonanno's other establishments. "When Osteria's outbreak came to my attention," he adds, "I instructed inspectors to check out Frank's other restaurants. With chains like that, it's common that there are cross-employees."
That wasn't all inspectors were instructed to watch for. Lee says her investigator was also told that cured meats were "being illegally manufactured at Luca and then sent to Osteria" — and possibly some of the other Bonanno Concepts restaurants. That led to concern that cured meats "may have been linked in some way to the illness," she explains. "The investigation would have proceeded the same way with any other restaurant group under these circumstances."
But Bonanno insisted then, and still insists today, that the department was on a witch hunt.
Make that meat hunt.
McDonald admits that he "suspected that Frank had a hidden meat-curing room" all along. It was difficult to "confirm it until the outbreak investigation, but we asked one of the staff members at Bones where Osteria's meat products came from, and one of the chefs opened the door for us to look."
Burton Koelliker, executive chef at Osteria Marco, was the employee quizzed about Bonanno's meat-curing program. "They asked Burton where all of the salumi at Osteria came from, suggesting that the meat could have been the culprit for the illnesses, but the fact of the matter is that salumi in and of itself doesn't contain norovirus. Botulism, yes, but not norovirus, which is an airborne illness," says Bonanno.
Beyond that, Bonanno insists that all of the salumi products served at Osteria Marco were sourced through outside purveyors, and says he produced the invoices to prove it. Nonetheless, the inspector pressed Koelliker, who admitted that, in fact, there was a salumi room above Bones, Bonanno's Asian noodle restaurant located between Mizuna and Luca D'Italia. "As soon as Burton told them that we had a salumi room, the inspectors bolted. All of a sudden, the alleged norovirus at Osteria was no longer important," Bonanno recalls.
"This was all a ruse to find my meat-and-cheese room," he continues. "Six, maybe seven, inspectors showed up at Bones in early April, several days after the outbreak, and demanded access to my private offices. For the past five years, my company — Bonanno Concepts — has leased those offices, so technically they aren't a part of any of my restaurants." Bonanno even pointed to his lease to defend that position, but because of the office's proximity to the commercial kitchens for Luca and Bones, "it didn't matter," he adds.
Inside the salumi locker above Bones, the inspectors found a few hundred pounds of prosciutto, pancetta, coppa, guanciale, sopressata and more. "Bones has never once served one piece of salumi, nor was anything in my locker ever served at Luca," insists Bonanno. "My salumi habit is a hobby, and I use it strictly for personal reasons — when I have dinner parties at my house or want to give it away as gifts — and it seemed easier, cleaner and more sanitary to use a commercial kitchen rather than my house." The locker was temperature-controlled at 62 degrees, with 60 percent humidity, which was "exactly what it should be," he says. Even so, Bonanno was forced to discard every last ounce of meat.
This wasn't the first time that Bonanno had faced an inquiry about his meat-curing processes. In December 2008, just a few weeks before he opened Bones, he'd received a cease-and-desist order from the City of Denver that forced him to temporarily suspend his house-cured meat operation, then located in the basement of Luca, after an inspection determined that his air-cured meats were stored at an improper temperature — 68 degrees rather than 41 degrees, the temperature required by law. Lee says Bonanno was warned that unless he had an approved Hazard Analysis and Critical Control Points plan approved by the city to ensure food-safety management, his meat-curing activities would remain an illegal endeavor.
While the meat was hitting the dumpster, a female employee at Osteria Marco suffering from diarrhea had agreed to submit a stool sample, which was tested for norovirus. The CDPHE came back with its result: negative. Three days later, on April 4, Osteria was again reinspected, and two additional employees — both food handlers who "reported symptoms consistent with norovirus," according to the city's report — submitted rectal swabs. Again, those samples tested negative for norovirus.
"It's unfortunate as we are not able to have confirmation of the suspected pathogen," Vu wrote in an April 9 e-mail to a department supervisor.
In fact, Bonanno's meats were never identified as the cause of the outbreak — and nor, for that matter, was anything else that was served to the 22 Osteria Marco guests and employees who ultimately complained about being sick. And Osteria Marco was never closed during the investigation. "Measures were put in place to protect public health, which enabled the facility to continue to operate," explains Lee.
Today, the cause of the problem remains undetermined — although the department remains reluctant to give Bonanno a complete pass. "It's possible that a customer could have initially introduced the illness to the facility," concedes McDonald. "The investigation revealed that the presence of ill employees, poor hand washing by employees and bare-hand contact with ready-to-eat foods by employees played a substantive role in the spread of the illness via food or via contaminated environmental services in the facility."
Osteria Marco, he maintains, was the only restaurant where there was a "common point of exposure for all of the ill individuals."
And the symptoms, McDonald stresses, were absolutely indicative of norovirus. "There was a preponderance of evidence that led us to believe it was norovirus," he says. "We matched up symptomatology with the food that was consumed at Osteria Marco, along with the incubation period, and by looking at those parameters, we can nail down what the source is."
While Bonanno wasn't fined for the outbreak itself, he was smacked with a $500 fine for several violations documented during the March 29 investigation. He later appealed the fine, which was reduced to $350 by a hearings officer.
The relationship between the city's health department and its restaurants was not always this sour.
"Fifteen, twenty years ago, a health inspector would walk into a restaurant, ask to talk to the person in charge, and they'd walk around the restaurant together to determine areas for improvement," recalls Pete Meersman, president and CEO of the Colorado Restaurant Association, which today includes 771 Denver restaurants in its membership. "An inspector might determine that a water glass couldn't be on the shelf because if it spilled, it had a slight potential of falling into a pot of something and making someone potentially sick, and if something like that happened, the violation would still be written up, but there would be a conversation between the manager, chef, operator, whomever, and it would be educational."
Even Bonanno remembers a day when his dealings with the city were far from hostile. "When we first opened Mizuna in 2001, our relationship with the health department was fabulous, and there was even an inspector who would come in for dinner at Luca with his wife and eat the salumi plate," says Bonanno. When that investigator visited one of Bonanno's restaurants to conduct an inspection, he was always "thorough and fair," Bonanno insists. And when a violation was documented, a restaurateur "was allowed the opportunity to fix the infraction on the spot."
But while restaurants might have liked the old system, there were complaints, too. "The department received a great deal of input and, to some extent, constructive criticism from the media and citizens about the lack of enforcement for repeat violations found in regulated facilities," Bob McDonald remembers. And so he worked with restaurants to create a new system for the 3,000-plus brick-and-mortar food establishments that the city is responsible for inspecting. In 2000, Denver began requiring a restaurant that had been cited with a critical violation to post a "public notice of enforcement" on its windows or door.
But since what was considered a "critical violation" could range from a lone ice cube in the hand-washing sink to a true threat to public health, restaurateurs had problems with this new system, too, likening the in-your-face paper postings to the "death penalty, or, as one person called it, 'a scarlet letter,'" recalls Meersman. And often those signs would be posted "long after the violation had occurred, and long after the violation had already been fixed."
By 2010, restaurateurs were beyond fed up, and the CRA began to advocate for change. "We worked with the Denver Department of Environmental Health and Denver City Council to get rid of the postings, because they were misleading — except where an imminent danger to the public existed and a restaurant had to be closed immediately," Meersman explains.
McDonald was involved in those discussions. "We were asked by the CRA and restaurateurs to take a look at the enforcement model that had been in place for ten years, and we agreed to modify the process to reduce the number of postings," he says.
But there was a tradeoff, Meersman recalls: "The department wanted to step up the fines."
Previously, Denver policy had mandated that a restaurant was subject to a $300 penalty after three consecutive critical violations in the same category within an eighteen-month period. A fine of $2,000 — the maximum allowed — would be assessed to restaurants that were closed by the health department if, says McDonald, "they presented an imminent public health risk, either because of the operator's negligence or something like the hot water heater going out, which isn't necessarily the fault of the restaurant, but still presents an imminent food-safety danger to the public."
On January 1, 2011, the policy was changed to allow a $250 fine for the second violation in the same category during a twelve-month stretch; a third violation would command a $500 fine. "We all worked together to get to this point," Meersman says.
Unlike most of his colleagues, though, Bonanno went ballistic over the new plan. "Everyone thought it was great, but they were being hoodwinked by Bob," he insists.
"Bob McDonald is fucking lying to you," Bonanno told a gathering of health-department reps, restaurant operators and chefs at a meeting held in 2011 at the CRA offices. "All this is doing is giving the health department free rein to fine us without the public knowing what they're doing behind closed doors."
Bonanno recalls telling the meeting's attendees that the new fine system was "nothing more than a cash stream," pointing out that "if the mission of the health department is really public safety, then why were they so willing to remove the postings, which would have continued to allow the public to be informed? It's clearly more about generating revenue than public safety."
Larry Herz, a veteran restaurateur who owns 730 South, a busy neighborhood restaurant in Bonnie Brae, agrees with Bonanno. "I'm an advocate of Frank, and the fact that he's standing up for what's right," says Herz. "I feel the same way that he does — that it's a money grab. It's so obvious that it's just another revenue stream. It's like the police giving speeding tickets to people going 56 miles per hour in a 55-mile-per-hour zone."
Although Bonanno and Herz were in the minority in preferring public postings over increased fines, all of the parties agreed that twelve months after the new system was introduced, they could review how it was working. "We wanted to revisit its overall effectiveness, so we started having discussions in early 2012," Meersman says.
By then, it was clear that while inspections might not have increased, the amount collected from fines had. In 2008, there were 9,003 food-service inspections conducted in the City and County of Denver, and the total fines collected amounted to $122,335; in 2009, the department inspected 7,811 food-service establishments, collecting $157,690. In 2010, the health department conducted 8,211 inspections, generating $118,995 in fines. But in 2011, when the Denver health department conducted 8,090 inspections, it managed to collect $731,900 in fines. And 677 restaurants were fined in 2011, compared to 315 in 2008.
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.
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.
"Under the current administrative citation structure, we've seen a significant decrease in the number of Type 1 [critical violations] per inspection," says McDonald. "The decrease in Type 1 violations should benefit the department, industry and, most important, citizens, since these types of violations are most often associated with the incidence of foodborne illness."
Still, despite what Meersman sees as "progress" — and he stresses that Lee, McDonald and Doug Linkhart, appointed by Mayor Michael Hancock to head the Denver Department of Public Health and Environment, "deserve credit for working with the CRA on solutions" — he says there's still room for improvement. "The concern that I hear most from operators is the lack of uniformity from one inspector to another," says Meersman. "If you have four restaurants in Colorado, each of which is in a different health district, you should be given the same process, the same results and same interpretations. There needs to be more consistency with results and outcomes, because when there's a lack of uniformity, it begs the question for the need of certification and/or training for the people conducting inspections."
There are more than 10,400 restaurants and drinking establishments in Colorado, which are expected to generate more than $9.4 billion in sales in 2013. As a home-rule city, Denver has its own regulations and food-safety programs, but "we try to mirror state regulations where possible," McDonald says, adding that there are program policies and continuing-education requirements that "facilitate a high degree of consistency between inspectors in terms of how regulations are applied." Even so, he adds, inspectors "all have the authority to use their professional judgment in determining when a situation deviates significantly from the intent of the regulations."
Lee, who worked at quick-service restaurants and as a bartender before she was hired by the city, maintains that she's "very confident that we have a more consistent staff than we've ever had." The city's twelve inspectors all must have "some type of biological- or environmental-science degree," she says, and while the department hires at the entry level, new inspectors do have to pass a test that's administered by the city. "I don't think you have to work in a restaurant to understand the demands of this job," she continues. "It's a lot more important to understand food safety and how foodborne illness occurs — the biology background — and while it's not my job to tell someone how to be a chef, I do have expertise in food-safety analysis."
Meersman hopes that those inspectors are using their knowledge wisely. "The state and local health departments, including Denver, are providing a service to the restaurants and the public, and in almost every case, they're working with restaurant operators to ensure appropriate sanitation levels and food safety, and in almost every case, they'll provide education to operators and staff," he notes. "But there needs to be more collaboration, cooperation and education — a willingness on the part of the inspector to work with operators on educating their staff to ensure food safety."
McDonald, however, insists that he and his department are already focusing on education. "None of our staff is evaluated on the basis of the number of critical violations they document, or the amount of fines from their reports," he points out. "They're evaluated on how much education they offer during an on-site inspection, and we offer classes quarterly to try and promote that."
He suggests that operators, too, can benefit from a positive working relationship with inspectors. "It always helps to take the regulations seriously. They're in place for a reason," he notes. "We're not out to get anyone — we don't control your business, and it's not because we want to generate revenue. It's because these are the accepted standards in our society, and our society thinks that food safety is important."
And so does Bonanno, although he worries that Denver's system doesn't focus on the right things. "We need to get back to having a partnership and working together," he says. "We have to use common sense, because the world isn't black and white like the health-department regulations. All I want is for inspectors to understand what's egregious, do their jobs professionally and nicely, explain what's going on during the inspection process, and keep up to date on product knowledge."
Recently, 730 South was inspected by the city. An open — but capped — bottle of water that belonged to one of the cooks was stashed in the refrigerator. The inspector who found it "asked me to imagine a tornado in my refrigerator and a cap that wasn't on tight, making the bottle spill into the food that we cook," Herz says, and the restaurant earned a critical violation for that infraction. "That's a ridiculous reason for a fine. There's no common sense anymore," he adds.
And to drive the point home, he notes that his former health inspector, now retired, "is one of my best customers."
And there will be more challenges. Herz and Bonanno, along with numerous other restaurateurs throughout Colorado, are now sourcing fruits, vegetables and meats from local farmers and artisans, hand-crafting their own cheeses, curing their own meats and using a wealth of other artisanal products. "The regulations aren't keeping up with what's new," Bonanno says, citing cheese as a prime example. "Why is the health code such that age-ripened cow's-milk cheese — a cheese that's aged in a cave and was made in such a way that it stops the bad mold and propagates good mold — can't be served at room temperature, even though we allow it to come into the country that way and it's meant to be served at temps that aren't frigid?"
But at least Bonanno's salumi locker — with all that salty, fat-licked sausage, prosciutto and other meaty addictions — will no longer be a bone of contention. Late in December, nine months after the first complaint came in about Osteria Marco and eight months after Bonanno started working with the department to make his salumi production legal, Lee signed off on Bonanno's HACCP plan for the production of non-heat-treated, dry, fermented sausages and non-heat-treated whole-muscle salumis. The plan, he says, will allow Luca D'Italia — the only restaurant in Denver that's officially approved for in-house salumi-making — to operate as a commissary kitchen that can supply house-cured meats for the Bonanno Concepts restaurants. Bonanno, along with two other licensed chefs on his staff, will have the authority to produce — and serve — his own prosciutto, bresaola, coppa, spalla, lardo, guanciale, pancetta, finocchiona, sopressata, speck and lonza.
And none of this, Bonanno admits, would have been possible without Lee's assistance. "Our relationship started changing for the better once we first applied for our HACCP plan. Danica knew that she had to work with us, and she single-handedly made it happen — and, honestly, without her unbelievable cooperation and help, we would have never gotten this approved," he says. "She's eager to learn, she's been amazingly open-minded and forward-thinking, and I can't give her enough credit. It just goes to show you that when we and the health inspectors work together, a lot can be accomplished."
While Bonanno, who regularly cooks at all of his restaurants, still gets cranky about some of the department's policies, he and his staffs are doing everything they "possibly can to comply with the health department," he says. "We have a checklist for every restaurant, and every day, the chef or the sous chef goes through the checklist and basically does an inspection of things that we used to get dinged for — making sure the hand sink is clean, making sure that gloves are available everywhere in the kitchen.
"If you stay on top of things, and if the health department is more understanding about what really makes people sick — none of us want to do that — then I think we can have a good relationship," he adds. "I hope that 2013 is a better year for all of us."
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