Violation Exceptions Routine In Campus Food Politics

    On multiple occasions, senior staff at the UCSD department charged with enforcing food health and safety laws allowed various campus food facilities to remain in operation without complying with state regulations, a six-month analysis of thousands of university records and photos obtained under the state’s public-records law indicates.

    Kaia Lai/Guardian

    The analysis, part of the Guardian’s three-year examination of UCSD’s Department of Environment, Health and Safety, presents an unusual and unique case study in the politics and conflicting forces that shape the everyday functions of California’s most elite public university. The documents also provide an important look at how the UC system’s autonomy from the rest of the state’s government institutions, guaranteed under the California Constitution, has allowed the university’s campuses to serve both as businesses and their own regulators, with both functions often overseen by the same top administrators.

    In recent months, a series of audits focused on UC pay have faulted the university for breeding a culture of exceptions: On one hand, it crafts complex and rigid rules to govern university conduct, and on the other, it disregards them when convenient. The Guardian’s analysis suggests that this culture extends to areas beyond compensation — including those affecting the safety of its students, patients and staff — and raises key questions about the structure and administrative hierarchy of the university.

    Photos Courtesy of UCSD Dept. of Environment, Health and Safety
    Health evaluations over the past five years have uncovered violations across campus food establishments, including hazards labeled as “imminent risks” to safety. Clockwise from top left: a kitchen at Hillcrest Medical Center, a “green gunk collector” at the Food Co-op, a drain at Faculty Club, a vent at Foodworx, a mousetrap at Star Wraps and a refrigerator at Grove Caffe.

    ‘A Major Change’

    Emblematic of the EHS approach to health inspections and the application of relevant state laws is the story of UCSD Medical Center at Hillcrest.

    In July of 2005, the department’s newest health inspector noted that the facility lacked “a constant supply of pressurized potable hot water at least 120 degrees Fahrenheit,” as required under the California Uniform Food Facilities Law, the code governing eateries.

    “This must be abated within 24 hours,” Inspector Darryl Yorkey wrote in the report, noting that the facility’s hot water was 15 degrees below the minimum.

    Almost six months later, in January of 2006, Yorkey found water at the facility even further out of compliance, ranging between 95 and 102 degrees.

    “Imminent risk observed, this facility must restore approved pressurized potable hot water within 24 hours,” Yorkey wrote again in January.

    Now, almost a year after the initial inspection, the facility has yet to comply.

    The problem, according to the medical center’s Director of Grounds Dennis E. Goodrich, is that the hospital has only one water-feeding system, which pumps hot water to the top of the facility, and then allows gravity to pull it down through the patient areas to the kitchen on the ground floor. Under separate regulations governing the temperature of water in the hospital, it cannot exceed 110 degrees in patient areas.

    “Please understand that the building was designed and built 50 years ago, to meet the standards for a community hospital at the time,” Goodrich said in a recent interview. “So we’re using a system used 50 years ago.”

    In November, the hospital began to draw out plans for a second source of water, exclusively for the kitchen. The process, which requires approval from the state agency that regulates health facilities, will take at least several more months to complete; in the meantime, the medical center is attempting to carry out most food preparations during the night, when temperatures can be boosted without affecting sleeping patients.

    The estimated cost for the new water system is $450,000, and the price tag for fixing all of the problems identified in Yorkey’s report runs over a million dollars.

    In the meantime, however, EHS has taken a usual step: It has exempted the hospital from complying with certain sections of CURFFL, the state’s health code. Last December, for example, Yorkey noted in an inspection report that, although the water was still below the minimum temperature, the hospital had an “abatement variance on file”; state law makes no mention of such variances.

    EHS Safety and Risk Manager John D. Schmidt, while denying that the department ever issued such a variance, suggested that inspectors may sometimes need to be more flexible than rigid laws.

    “UCSD does not issue variances, but codes do not address every conceivable situation, so all inspectors must use professional judgment to interpret and apply the codes they enforce,” Schmidt stated in an e-mail.

    Asked about the specific note in the hospital’s inspection report, Schmidt said, “That’s Darryl’s statement, you have to ask him what he meant. We don’t have ‘variances,’ and I don’t know why he put that.”

    At the same time, however, the department has declined to allow the inspector to speak with the Guardian regarding his reports.

    “Darryl Yorkey is not working in the food safety program at this time and therefore it would not be appropriate for him to represent EHS in regards to food safety issues,” EHS Director Steven Benedict stated in an e-mail.

    In response to repeated calls and e-mails, Yorkey issued a statement explaining that he had been told not to communicate with the media.

    “I have been previously instructed by my immediate supervision that I am not to speak with or take interviews from you or other members of the media concerning departmental policy or individual facility inspections,” Yorkey stated.

    ‘Our Historical Perspective’

    In internal e-mails turned over in response to the public-records request, Yorkey expressed particular worry over how the water issue could affect the immuno-suppressed patients being treated at the hospital. However, it was not the first time the inspector raised questions about how the university interpreted the health code.

    In late 2004, shortly after he was hired, Yorkey ordered operators of the RIMAC 101 Cafe, a small coffee cart next to the arena, to stop serving soup and cooking food on a barbeque, explaining that the cart was allowed to sell only “pre-packaged, non-potentially hazardous food.”

    The order upset Director of Sports Facilities Donald E. Chadwick, who wrote an angry e-mail to Schmidt.

    “EHS has previously enjoyed a good reputation for working with departments, finding out what departments wanted to do, educating and helping them to achieve their goals,” Chadwick stated. “Is it now — let’s blindside them and shut down their operations …?”

    In response, Schmidt admitted that the department had been less than fully alert in its previous enforcement of the law.

    “The regulations have changed over the years, and our extended vacancy in this position (three years) precluded us from being as vigilant as we should have been in the area of health inspections,” Schmidt stated in an e-mail to Chadwick. “Darryl is very thorough, which we encourage, but does not yet have the benefit of our historical perspective.”

    In subsequent interviews, Schmidt said that the phrase “historical perspective” referred to a specific exception in the health code that allowed certain outdated equipment to be grandfathered in under the current laws, not to the previous relationship between EHS and other campus departments.

    Though he said the department does not issue “variances,” Schmidt allowed the RIMAC cart to operate the barbeque over the inspector’s objections.

    “I am willing to grant a waiver on the barbecue location since [Chadwick] has offered to upgrade the east concession stand, and the traffic pattern for his daily sales is on the upper entrance to RIMAC,” Schmidt stated in an e-mail to Yorkey in early January of 2005.

    It was not the only time Schmidt cited history prior to granting unusual exceptions.

    In February of this year, Yorkey e-mailed Schmidt to point out that the Vedic Society, which sells the Hare Krishna dishes every Wednesday at the Student Center, had yet to apply for a health permit, though it was ordered to do so nearly 13 months earlier. Under state law, nonprofit food vendors can operate only four times a year without obtaining a permit.

    “They have really exceeded their allowed showings as a nonprofit,” Yorkey stated. “They are still showing up to sell food [every week]. How would you like me to handle the situation?”

    Schmidt told the inspector to contact the student organization in charge of the event “to effect permitting and food safety.”

    “Educate them on the limits of operation required by CURFFL and develop a strategy for bringing them into compliance, while factoring in their historical role of providing the only source of vegetarian cuisine at UCSD,” Schmidt stated in an e-mail.

    In response to questions, Schmidt said the facility has now obtained a valid establishment permit from the department, and that its operations never presented a health threat because all food sold by the Vedic Society had been cooked offsite, in an approved facility.

    The approach of UCSD’s EHS differs drastically from those of other environmental health agencies, including those at other UC campuses. Days before Schmidt’s e-mail about the Vedic Society, for example, health officials at UCLA shut down a similar vendor, operated by a monk from the International Society for Krishna Consciousness, after concluding that he could not operate more than four times a year without a permit.

    According to Darryl Wong, current president of the California Environmental Health Association and a health inspector for San Benito County, the issuance of exemptions from state law is not unheard of in the industry, though they are not provided for in CURFFL and usually require approval from heads of the local health departments.

    “You’re walking into a real gray area in the law,” Wong said in an interview. “When you look at the law, it’s black and white. It’s not allowed in CURFFL, obviously, and they are taking a chance that something might happen.”

    In response to an inquiry, Joe Adams, the head of environmental health and safety at the UC Office of the President, said each campus had wide leeway in ways it interpreted and enforced health codes, including the issuance of variances.

    “UC procedure allows and encourages each campus to operate very independently,” he stated. “UCOP does not specify how each campus conducts its business as longs it is within the law.”

    When asked if the law allowed for variances, Adams did not respond.

    ‘Are We Going to Schedule Inspections?’

    Even short of actual exceptions, EHS has, at times, adopted practices quite unusual for a health regulator, according to several experts.

    In January, for example, the department was asked to inspect all of the Fairbanks coffee carts on the same day. That particular request was forwarded to the inspection staff by Vickie Tencer, head of EHS’ business operations. While it is unclear why the department’s business manager was involved in scheduling inspections, EHS specialist Bruce Bowers forwarded her request on to Yorkey. (Bowers is Yorkey’s immediate supervisor.)

    Usually, inspections are carried out at random times, to assure that the health department reviews facilities in their most representative state. Committing to carrying out the inspections on the same day would effectively give the operator prior warning, Yorkey pointed out in his response.

    “Is this a request that we are going to commit to?” Yorkey asked Bowers in an e-mail. “Are we going to schedule inspections?”

    According to the documents, Bowers did not respond, and Yorkey continued to issue further objections.

    “Are we going to start honoring these types of requests?” Yorkey asked in another e-mail. “I am sure you realize that if we honor this type of request and give prior notice to the owner of a facility even in this way, the observations of a ‘routine’ inspection will be biased.”

    Wong, the head of the CEHA, said scheduling inspections in such a way is uncommon among health inspectors.

    “It’s really at the convenience of the inspector, not at the convenience of the operator,” he said. “We can go in at any time we want — that’s what having a permit means.”

    Bowers did not respond to requests for comment, and Schmidt denied that the inspections had been scheduled ahead of time, though he pointed out that doing so would likely not have affected their validity.

    “I am not aware of any such requests being honored,” Schmidt stated in an e-mail.

    ‘An Overnight Change’

    Prior to Yorkey’s hiring in fall of 2004, all of the inspections — except for a short break in 2003 — had been carried out by Bowers. When Yorkey took over, scores of almost every single facility dropped, with 11 eateries receiving the lowest ‘C’ grade.

    In some cases, Yorkey apparently discovered facilities that had not previously been inspected, like the kitchen at Eleanor Roosevelt College’s Great Hall. In various locations, Yorkey documented long-standing violations — like the absence of a certified manager or lack of hot water — that had apparently been missed for years by Bowers.

    For example, when Bowers inspected the CUPS Cafe in June of 2004, he noted only one violation — an expired fire extinguisher — and gave the facility a score of 99 points, out of a 100. Four months later, Yorkey’s inspection noted more than 10 health-code violations, and the facility’s score fell to 81.

    According to Schmidt, the change was due more to the way the department’s new scoring method worked, and less to the change in inspectors.

    “As discussed in our previous interview, the new reporting/scoring system imposed by the state (the only tool used at UCSD by Mr. Yorkey) is radically different than our previous system (the only tool used by Mr. Bowers until now),” Schmidt stated in an e-mail. “Thus, comparisons of old system scores with the new system scores are not valid.”

    However, according to many food vendors, the department’s standards have also changed.

    “From my perspective, the inspection standards have been stricter in the enforcement,” said Goodrich, the facilities director at the medical center. “And rightfully so.”

    Chadwick, the head of the athletic facilities, initially reacted more angrily.

    “While we are very interested and committed to complying with necessary food safety regulations, I am concerned that a change in personnel has affected what appears to be an overnight change in campus standards, EHS practice and compliance strategy,” he stated in e-mail to Schmidt.

    ‘Who Did the Grading?’

    On Feb. 13 of this year, a Monday, Yorkey arrived to his office to find all of the food-facility files gone and an e-mail from Bowers, sent the night before: “Effective immediately, I will be assuming the duties of the campus food-facility inspection program and temporary food booth program on campus. … With the exception of food-facility plan review, you are not to have any interaction with the campus food facilities unless instructed to do so.”

    Schmidt painted the change as a simple administrative decision.

    “Our sanitation inspection program has many elements, and we are fortunate to have two registered inspectors, Mr. Yorkey and Mr. Bowers,” he stated in an e-mail. “At this time, Mr. Bowers is responsible for the food-safety program, and Mr. Yorkey is responsible for the housing, pools, water-quality and recycled-water programs.”

    A week earlier, Benedict, the head of EHS, sent an apologetic e-mail to Vice Chancellor of Business Affairs Stephen W. Relyea, warning him that a copy of the Hillcrest inspection had been requested under the California Public Records Act.

    “Just a heads up that the Medical Center kitchen at Hillcrest has been graded as a ‘B,’” Benedict stated. “We’re using all necessary resources to help the vendor, Aramark, bring the kitchen up to an ‘A.’ … I wanted you to know in case it ends up in the news.”

    The vice chancellor responded by asking: “Who did the grading of the med ctr. kitchen?” Benedict said it had been done by Yorkey and Bowers, and that “under the code it couldn’t have been scored differently.” Seven days later, Yorkey was no longer doing inspections.

    According to one source, granted anonymity because the official was not authorized to comment on behalf of the university, Relyea had previously played a role in staffing decisions at EHS. In 2003, emergency-preparedness planner Garrett McLeish was demoted to the position of food inspector, after criticizing the state of the university’s emergency-preparedness program, the source said, and the vice chancellor’s office was involved. McLeish left six months later.

    Schmidt denied that Relyea had any role in either staffing move, and said the vice chancellor expects all of “his managers to comply with all applicable codes.” Relyea’s office said he was out of the state last week and unavailable for comment, and he did not respond to questions submitted via e-mail.

    What is unique about the situation is that Relyea oversees both EHS and Housing and Dining Services, the department that operates many of the eateries inspected by Bowers and Yorkey. Under the funding process used by the university, a part of H&DS profits also go to fund EHS.

    According to Schmidt, profits from dining facilities provide less than 5 percent of the total EHS budget of $6 million, though the amount is still more than the combined salaries of Bowers and Yorkey, the two inspectors.

    Asked whether the arrangement represented an inherent conflict of interest, Schmidt said, “No, EHS regulates every division of UCSD (labs, clinics, shops, offices, housing, dining, etc.) so where we report is immaterial.”

    Schmidt also explained that he had full confidence in Bowers’ ability to take over his old inspection duties from Yorkey.

    “I am not aware of any major violations missed by Mr. Bowers in the past,” Schmidt stated in an e-mail. “And, considering his extensive knowledge base and experience in the food-safety field, I am confident he will exceed our expectations.”

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