Portland restaurant owners surprised by code violations, including no-open-door policy

PORTLAND, Maine — A year into a new restaurant-focused health inspector’s tenure, the required checks are more rigorous than ever and include limits on outdoor dining.

Restaurants and other food service businesses are seeing more violations noted on their inspection sheets than in the past, the inspector, Michelle Sturgeon, said. That, in turn, is spawning a mix of praise and chagrin from owners and managers of eating establishments.

Sturgeon has been on the job since August 2011, when the city created a health inspector position within the Health and Human Services Department. Previously, Portland’s restaurants had been checked by inspectors from the Planning and Economic Development Department’s Inspections Division, who also had to enforce building codes for the entire city.

Sturgeon’s position was created to strengthen the public safety aspect of restaurant inspections, the city said. At the same time, the city also changed its inspection system from a numbered scale going up to 100 to a pass-fail system.

Now, to pass inspection, a restaurant can incur up to 13 code violations, no more than three of which can be deemed critical. Some violations may be resolved on the spot; for critical violations, Sturgeon returns within a week or two to check if they’ve been fixed.

Sturgeon is alone in a city swamped with food service establishments. There are about 800 restaurants in Portland, each of which should be inspected once every two years. She is also charged with inspecting between 500 and 800 vendors at events and festivals throughout the summer.

But the task of focusing almost exclusively on food service allows her to conduct extremely thorough inspections, which accounts for some of the rise in violations.

She said common violations include not maintaining the required low and high temperatures in cold and hot storage areas; not shaving plastic cutting boards when they’ve become too dirty; using improper sanitizer concentrations; poor pest control; and missing signs around hand washing stations.

Most restaurant managers agree that health inspections are both good and necessary.

“We support health inspection. We support healthy food service practices,” said Steve DiMillo, owner of DiMillo’s On the Water and board chairman of the Maine Restaurant Association. “A food-borne illness in any restaurant is not good for the restaurant [industry] as a whole.”

Passing an inspection with no violations whatsoever is rare, Dimillo said, since violations may be as small as a wiping towel not kept in its proper bucket.

“I don’t know of a restaurant that exists that an inspector can’t walk in and find something,” he said. “Michelle is spending more time, from what I’m hearing, inspecting these properties.”

Often, Sturgeon said, the negative marks are for violations of code that restaurant operators don’t even realize are on the books, including a controversial rule that all seating areas should be closed off from the outside.

“Nothing is as contentious as the door and screening” issue, said Julie Sullivan, Portland’s public health director.

According to the rule, doors and windows, between kitchens or dining areas and the outdoors, need to be closed or screened. So do outdoor patios. If they aren’t, it counts as “ineffective pest management,” a non-critical violation, Sturgeon said.

“It’s in the food code to protect against all pests: feral cats, squirrels, flying insects,” she said.

DiMillo, whose restaurant has an open patio, but has not been inspected since Sturgeon starting working, said that rule is “news to me.”

During the summer, Portland’s restaurant industry thrives on patio seating and other forms of access to the open air. Virtually every establishment on Commercial Street has a patio, as do a number of others in the Old Port and elsewhere. Few are enclosed by screens or anything else.

“You can’t screen an outside deck. It would be impossible,” DiMillo said.

Restaurants and bars tend to see the closed/screened door policy as “unwelcoming to the public,” Sturgeon said.

But restaurants that prefer open doors are largely keeping their gripes private.

A manager from Nosh Kitchen Bar, at 551 Congress St., declined to speak about being forced to keep a large, garage-door style storefront closed for fear of retribution from the city.

Sturgeon said she would “never ever” retaliate, and said, “I’m standardized to inspect a certain way, and I do my inspections the way I’m standardized to do them.”

At Otto Pizza, which sometimes kept the front door of its 225 Congress St. location open during early summer and later installed a wooden-framed screen door there, manager Scott Tresselt said he understands the policy, but that installing the door represented an added cost to his business. Otto’s chief finance officer, David Hopkinson, wouldn’t allow him to make further comments.

Whaddapita, at 408 Forest Ave., which also has garage-style doors that have remained open through the summer, did not return calls, but DiMillo was sympathetic to their situation.

“I’d be not very happy with the city of Portland if they issued me a permit to build that Whaddapita property and then the health inspector and told me I couldn’t” keep the doors open, he said.

If DiMillo’s On the Water is written up for the lack of screening around their patio, they would likely solicit the state to change the rule, “because its not practical,” he said.

The city is not entirely unsympathetic either. “We feel bad but … that’s the law,” Sullivan said.

Sturgeon led a series of voluntary informational meetings with restaurant owners in late July and has more planned for Aug. 14 and 28, and monthly meetings from September through December to help educate restaurant managers about policies and procedures that may otherwise come as a surprises.

Sturgeon said her job is to educate and work with restaurants to ensure their success and safety.”What I’m looking for is when I come in, I have to dig to find something to tell you,” she said. “Then you know that you’re beyond reproach.”

The city is also reviewing its food code in hope of bringing it more in line with the state’s guidelines. Much of that work involves removing redundant language or adding clarifications; the Public Health Department hopes to send recommendations for the revised code to the City Council’s public safety, health, and human services committee in September.

The effort may yield some issues which the city would bring to the state’s attention for possible revision. “There are a couple areas where we don’t see eye to eye with the state,” Sullivan said.

It’s not clear if the no-open-door policy will be among them.