Special Notice / Hearing: None__
Vote Required: Majority
To: Honorable Board of Supervisors
From: Michael P. Callagy, County Executive
Subject: Response to 2023-24 Civil Grand Jury Report “Restaurant Exteriors: The Neglected Space”
RECOMMENDATION:
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Approve the County’s response to the 2023-24 Civil Grand Jury Report “Restaurant Exteriors: The Neglected Space.”
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BACKGROUND:
On July 9, 2024, the 2023-24 San Mateo County Civil Grand Jury issued a report titled “Restaurant Exteriors: The Neglected Space” (Report), requesting that the County respond to the seven Findings and four Recommendations set forth in the Report.
Pursuant to Penal Code Section 933, the County’s response to the Report is due to the Honorable Amarra A. Lee, Judge of the Superior Court of California, County of San Mateo, no later than September 18, 2024, which is 90 days after issuance of the Report.
DISCUSSION:
Staff recommends that the Board of Supervisors submit the following responses to the Report in compliance with Penal Code Section 933.05:
FINDINGS
Finding No. 1:
Sanitary conditions of the exterior of restaurant facilities fall outside current inspections of the County Health Department. The varying unsatisfactory conditions in the waste removal areas of the facilities shows something is lacking in the regulatory process.
Response:
The County disagrees with this Finding, as it relates to areas within its control. Using the California Retail Food Code (CRFC), County Health monitors compliance of exterior areas, including waste disposal/refuse areas and outdoor seating under direct control of the permit holder (restaurant), which may include seating areas in “parklets” (addressed below in Finding No. 2) as it pertains to vermin control, through routine and non-routine inspections of restaurants, employing the State of California Department of Public Health and Federal Food and Drug Administration (FDA) standard inspection protocols. Violations pertaining to garbage and refuse are not considered imminent public health threats. While some outdoor conditions may appear unattractive, County Health inspections focus on conditions that affect public health and sanitation, specifically focusing on safe food handling practices, which are considered essential to public health protection. Stains, unsightly enclosures, minor refuse spillage, and storage of materials that are not directly contributing to vermin control issues are not generally considered primary health and sanitation conditions affecting safe food handling and are therefore classified as “minor.” However, if violations in the exterior areas of restaurants under direct control of the restaurant contribute to major violations inside the facility, corrective actions are required and reinspections of activities contributing to critical hazard violations will occur.
City and County ordinances also directly apply to these areas. County ordinances pertaining to stormwater compliance, requirements for best management practices (BMPs) at refuse storage areas and parklets, and nuisances associated with refuse storage areas and parklets are administered in unincorporated areas of the county, and result in both proactive and complaint-responsive inspections.
County Health also administers the stormwater ordinance, codified as Title 4, Sanitation and Health, Chapter 4.100, Stormwater Management and Discharge Control (County Stormwater Ordinance), for the unincorporated areas of the county, as it pertains to restaurants, for actual or potential discharges to the storm drain system and implementation of BMPs through routine and nonroutine inspections of exterior refuse storage areas of restaurants.
The County does not exercise control over other municipalities in San Mateo County and, therefore, does not respond to this Finding on their behalf for stormwater, use permit, or nuisance ordinances.
Finding No. 2:
Sanitary conditions of parklets fall outside of current inspections by the County Health Department or Vector Control.
Response: The County partially disagrees with this Finding, as it relates to County Health, but the scope of the CRFC is limited to areas under the direct control of a restaurant. The term “parklet” is not used in the CRFC, but County Health has interpreted these seating areas to be inclusive of the CRFC inspection. That said, the County has conducted outreach to other jurisdictions administering the CRFC and determined that these dining areas are not consistently covered by all CRFC inspections. Some, but not all jurisdictions, incorporate the seating areas that were constructed on sidewalks and parking areas (“parklets”) during the pandemic into CRFC inspections. Parklet construction, however, is not reviewed by County Health.
Inspections of seating areas are general in nature and general sanitation violations are classified as “minor.” However, if violations in the exterior areas of restaurants under direct control of the restaurant contribute to major violations inside the facility, corrective actions are required and reinspection of activities contributing to critical hazard violations occur.
County Health cannot comment on the role of County Vector Control District.
Finding No. 3:
Sanitary conditions of exterior areas used for waste storage and disposal fall outside current inspections by local jurisdictions; local jurisdictions are, by and large, only reactive to an actual complaint.
Response: The County disagrees with this Finding, as it relates to areas within its control. Using the CRFC and focusing on health and sanitation, County Health monitors compliance of exterior waste disposal/refuse areas as it pertains to vermin control, through routine and non-routine inspections of restaurants, and employing the State of California Department of Public Health and FDA standard inspection protocols. Violations pertaining to garbage and refuse are not considered imminent public health threats, but if violations of the CRFC in the exterior areas under direct control of the restaurant correlate to a critical hazard in the restaurant, they are documented, requiring correction.
Routine inspections of food facilities occur 1-3 times per year. County Health also administers the County’s Stormwater Ordinance within the unincorporated areas of the county, as it pertains to restaurants, for actual or potential discharges to the storm drain system and implementation of BMPs through routine and nonroutine inspections of exterior refuse storage areas of restaurants.
The County does not exercise control over other municipalities in San Mateo County and, therefore, does not respond to this Finding on their behalf for stormwater, use permit, or nuisance ordinances.
Finding No. 4:
Most restaurant exterior areas are “out of sight” of the public and as a result complaints are less frequent.
Response: The County neither agrees nor disagrees with this Finding, as the County does not have sufficient information to respond to this Finding.
Finding No. 5:
Because they lack oversight, unacceptable conditions in restaurant trash areas are likely not to be rectified.
Response: The County disagrees with this Finding, as it relates to areas within its control. If unsanitary conditions in restaurant trash areas are a violation of the CRFC and correlate to a critical hazard in the restaurant, they are documented, requiring correction.
If, during routine stormwater inspections at unincorporated restaurants, which the County monitors for compliance with the County’s Stormwater Ordinance, a restaurant is not employing BMPs to prevent discharges to the storm drain system, the violation is documented and an enforcement action is initiated, directing the facility to demonstrate that the violation has been corrected. Follow up inspections may occur to ensure unresolved violations are addressed in a timely manner and to implement escalated enforcement, as necessary.
Finding No. 6:
Waste water from the cleaning of trash areas and from rain flow into the storm drain systems.
Response: The County neither agrees nor disagrees with this Finding, as it relates to areas within its control. It is a violation of the County’s Stormwater Ordinance to discharge into a storm drain, and County Health regularly inspects outdoor areas and drainage at restaurants in the unincorporated areas of the county to ensure BMPs are in place.
In addition, see above Response to Finding No. 5 regarding enforcement of the County’s Stormwater Ordinance.
Finding No. 7:
Effective inspection of parklet sanitation can be severely hampered by closed skirting and lack of under floor access. Spacing between planking and lack of solid flooring can lead to accumulation of organic debris and possible infestation by vermin.
Response: County Health neither agrees nor disagrees with this Finding as parklet construction is not reviewed by County Health.
RECOMMENDATIONS
Recommendation No. 1:
By June 30, 2025, the County should amend its Food Facility Checklist to include the condition of trash area flooring, bins, dumpsters, and enclosures, and note any needed repair, replacement, or cleaning.
Response: The Recommendation has not yet been implemented but will be implemented in the future. The Food Facility Checklist, developed for use by food facilities to perform regular self-audits, will be amended to include additional details suggested by this Report to assist operators with assessing the condition of their exterior trash areas. The Checklist will be translated into Spanish and simplified Chinese, emailed to restaurants and also remain available on the County Health website. Additionally, during routine stormwater inspections, operators will be provided with a link to California Stormwater Quality Association’s (CASQA) BMP for food facilities: BG-30 Food Service Facilities and Flowstobay.org’s Best Management Practices for Parklets <https://www.flowstobay.org/wp-content/uploads/2022/08/Parklets-BMP-Tip-Sheet20220818.pdf>, a tool used for compliance with the County’s Stormwater Ordinance.
Recommendation No. 2:
By June 30, 2025, the County should amend its Food Facility Checklist to include the entire exterior waste storage area, retention areas and parklets, including flooring and underfloor areas.
Response: The Recommendation has not yet been implemented but will be implemented in the future. Consistent with the County’s above Response to Recommendation No. 1, the Food Facility Checklist will be amended to also include the entire exterior waste storage area, retention areas, and parklets, and operators will be provided a link to Flowstobay.org’s Best Management Practices for Parklets <https://www.flowstobay.org/wp-content/uploads/2022/08/Parklets-BMP-Tip-Sheet20220818.pdf>.
Recommendation No. 3:
By June 30, 2025, the County should require operators/owners of restaurants to have a written diagram of their approved waste storage/retention area posted so the inspector can evaluate the condition of the facilities.
Response: This Recommendation will not be implemented because it is not warranted or is not reasonable, as this is not a requirement of the CRFC and is not enforceable. County Health inspects the exterior waste storage areas as part of inspections pursuant to the CRFC and the County’s Stormwater Ordinance.
Recommendation 4:
By June 30, 2025, inspectors for all jurisdictions with restaurants should be empowered to require owners/operators to add receptacles or increase the frequency of pick-ups.
Response: This Recommendation has been implemented as it relates to areas within the County’s control. County Health staff are empowered to enforce the CRFC, which requires that restaurants ensure refuse removal at a frequency sufficient for the amount of waste generated. When vermin issues in the restaurant arise, assessment of the contributors, including chronic issues pertaining to the exterior waste storage area, are included in a compliance directive.
The County’s Stormwater Ordinance requires that businesses within unincorporated areas maintain their operations so as not to create an actual or potential discharge to the storm drain system, utilizing BMPs and good housekeeping. When insufficient BMPs are observed in outdoor waste storage and disposal areas at restaurants in unincorporated areas, particularly when evidence of chronic or ongoing discharges are observed, County Health staff are empowered to note this as a compliance directive and require adequate BMPs or escalate enforcement actions, as appropriate.
FISCAL IMPACT:
There is no fiscal impact associated with the acceptance of this Report.
ATTACHMENTS:
Attachment A: Restaurant Exteriors: The Neglected Space, July 9, 2024