Portsmouth Restaurants heat up food code debate Health inspector faces questions

PORTSMOUTH - Nineteen city restaurants were represented at a forum to discuss the city's proposed new food code on Monday, when rules, appeals and mandates were debated.

The city is proposing adoption of a 2009 federal food code, which Mike Somers, president and chief executive officer of the New Hampshire Lodging and Restaurant Association previously said is based on "good food safety science." Somers said the city is also proposing pages of amendments, some of which he said his local members don't understand, so they're unsure if they should support or oppose them.

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

City regulations, outside the proposed food code, were the topic of much debate at Monday's meeting. Representing Martignale Wharf and The Rosa restaurant, developer Mark McNabb said his opening of the Martingale was delayed because of a rule or regulation prohibiting a kitchen from being located below the elevation of a sewer main.

"That is a specific example of something that was in the rules and regulations that was substantial," he said. "It doesn't take a ton of these to create angst, it takes one of them."

McNabb said the city also requires restaurants to have grease traps of specific sizes and that's not in the food code, either.

Health Inspector Kim McNamara said grease traps fall under the sewer ordinance, not health code. McNabb countered, "You can't get a food license without that."

"That's on your checklist," he told McNamara. "That's a policy."

McNabb asked for a published list of rules and regulations, which he said can prevent restaurants from opening, or otherwise affect their viability. He said he's been a developer in Portsmouth for 33 years and, "I want to know what they are and how they change."

Somers asked if the rules "live somewhere where the business owners can look them up."

McNamara said there is "not a big umbrella of hidden policies and procedures" and health inspectors do not leave a business without telling owners about specific concerns and requirements that must be met. She said the city's website is being upgraded and all information will be posted online.

Representing the Gas Light Co. restaurant, attorney Jon Flagg said if rules and regulations are not approved by the City Council, they're not legal. He also blasted the city's appeal process for anyone in the restaurant business to challenge the food code.

City officials said appeals can be vetted through the city legal office and state health officials can be consulted, before a dispute ends up in court. Flagg, who has a legal case against the city for its order that the Gas Light enclose its outdoor deck, said, "I've never heard of an appeal process where you're told you have to go to the other side's attorney." Flagg said the city's website says outdoor bars "shall be" enclosed and that was not passed by the City Council.

"This is legislation by someone sitting in the health office," he said. "That's what everyone is talking about."

McNamara said all other restaurants in Portsmouth have complied with the deck-enclosure regulation. Assistant City Attorney Jane Ferrini said because the Gas Light case is being litigated in court, Monday's meeting was not the appropriate forum to discuss it.

Another concern of restaurant owners was part of the proposed food code pertaining to change of ownership, which can trigger requirements for upgrading eateries to food, fire and building codes.

Owner of Moxy and Franklin Oyster House, Matt Louis asked if a restaurant has to be brought up to code before it's sold. McNamara said a restaurant can be sold in any condition, but a buyer may be required to make upgrades before reopening.

Poco's owner John Golumb asked about the tipping point of controlling company interests that would trigger compliance with current codes. He was told it's 50 percent or more.

McNamara noted "big ticket items" ordered during some changes-of-ownership - like ventilation, fire suppression and alarm systems - are not health code requirements. Those, she said, fall under building and fire codes.

After the city upgrades the food code, it plans to next adopt new building and fire codes.

Represented at Monday's meeting were spokespeople from Portsmouth Gas Light Co., TJ's Food and Spirits, Poco's, Old Ferry Landing, Breaking New Grounds, Mombo, Kim Lai, Cure, Street, Ristorante Massimo, Earth Eagle Brewings, Geno's Chowder, Martingale Wharf, The Rosa, Moxy, Franklin Oyster House, Liars Bench Beer Co., La Mason Navarre and Palace Entertainment.