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Recently, a WHQR listener who works in the restaurant industry called in with a concern: the establishment where they work had recently been visited by county health inspectors — but unlike past visits, this time health inspectors ignored the bar area. This was concerning to the listener because they said there are still plenty of food-safety issues at the bar, including the proper storage of drink ingredients and garnishes, the cleanliness of ice, drinks, beverage hoses, and utensils, and other parts of the bar operation that had now been omitted from the inspection — and the restaurant's health score.
This appears to be the result of Senate Bill 470, which passed into law last summer, with an effective date in September 2022. Confirmation of this comes courtesy of Alicia Pickett, the environmental health services manager for New Hanover County.
“Yes, Senate Bill 470 made various changes to the Alcoholic Beverage Laws and the interpretation we have received from the state (DHHS-Environmental Health-Food Protection) is public health no longer regulates bars as defined in §18B-1000,” she wrote, adding that “Environmental Health Specialists (health inspectors) are no longer regulating or looking at bar areas in restaurants as of September 2022.”
Pickett also confirmed, even prior to this law, in North Carolina county healthy inspectors don’t issue sanitation scores to bars — those are the certificates that give a letter grade based on a 0-100 score, which are supposed to be conspicuously posted so patrons can see them (although, in practice, lower scores are sometimes posted less visibly than higher scores).
For Alcohol Law Enforcement (ALE), which permits and patrols alcohol-selling establishments, the criteria for a bar permit is that less than 30% of an establishment’s revenue comes from food. So, if it’s a bar that sells light snacks or a wine bar that offers a few charcuterie board options, chances are, it’s a “bar,” not a restaurant. Even if the bar has a full kitchen turning out burgers and fries, if it’s making 70% of its revenue or more from alcohol then health inspectors don’t check in on it, and patrons just have to trust that the food options are above board.
There was also, for several years, the confusing issue of private clubs and private bars. Since the early 1980s, private clubs have effectively been the term for bars in North Carolina; these establishments had to have bylaws, and maintain a membership list. They could only allow members inside — no guests — and members had to pay an annual membership fee. A loophole in a 2013 law also allowed some restaurants that were designated as private clubs to avoid health inspection for their kitchens. In 2019, the state also allowed private bars – which were nearly identical to private clubs except they didn’t have to have bylaws. In the summer of 2022, the state finally got rid of the membership laws.
In any case, bars don’t get inspected, and now, under the new law, bar areas of restaurants don’t get inspected.
According to guidance sent from NCDHHS to local health departments, the bar area is “where alcoholic beverages are prepared, poured, or mixed before service to customers and food is not prepared, (except for the preparation of garnishes for alcoholic beverages).”
Questions, anyone?
Health inspectors with boots-on-ground experience had plenty of follow-up questions, some general and some drawn from specific examples. New Hanover County provided a collection of questions and answers between health inspectors and NCDHHS as they worked through the ramifications of the new law. [You can find the full Q&A at the end of this article.]
While WHQR has heard, anecdotally, that health inspections are sometimes laxer in looking at bar areas than they are for kitchens, the new law means the bar area is entirely out of their jurisdiction.
Dirty dishes, utensils, or ice machines? Off-limits. A backed-up sewer drain or flies? Off-limits. A visibly sick employee or someone using bare hands to garnish a drink? Off-limits.
Health inspectors who notice one or more of these issues in an ‘off-limits’ area are being told to report concerns to ALE or the local ABC office — but it's not exactly clear from NCDHHS guidance what those agencies would do with a complaint.
According to an ALE spokesperson, law enforcement will enforce the law, which requires that bars keep their "premises clean, well-lighted and orderly" — but didn't provide details beyond that. The New Hanover County ABC directed questions to its ABC Officers unit, part of the Sheriff's Office. A spokesman for the unit said he was unaware of the new law. WHQR shared the new statute with him in late February, but neither he nor the ABC office responded to follow-ups since.
The answers to inspectors’ questions reveal the breadth of immunity the new law creates for bar areas.
For example, under the law, bar areas are not supposed to be for cooking or holding food at temperature (for example a chaffing dish, soup well, or cold storage for salad). But when health inspectors asked about these issues, NCDHHS answered, “[t]his could only be found out from conversation as we can not inspect the bar area.” However, if the holding of food did come up ‘in conversation,’ inspectors would likely be able to check the food’s temperature, according to the state.
And, even though food is not supposed to be stored at the bar, there is an exemption for ‘garnishes.’ And, while many people think of lime slices or maraschino cherries, the law doesn’t create any definition for them. There’s no limit to what could be considered a garnish.
Another example: raw oysters require shellfish tags and are rigorously inspected for holding conditions when they’re in the kitchen. But once they’re moved to the bar inspectors lose any authority. Or take on those over-the-top Bloody Mary drinks — as long as all of the ‘toppings’ are stored at the bar area and only used for making drinks, they could include anything from shrimp to a half-chicken. Health inspectors will also no longer evaluate the drink menu for appropriate warnings (i.e. for raw seafood or eggs).
Who wanted this legislation?
The Senate bill had several sponsors and passed both the House and Senate votes unanimously before being signed by Governor Roy Cooper. It's also a complex bill, which makes a lot of technical changes to the ABC — as well as, somewhat randomly, correcting the name of the Propone Trade Association. So, it's difficult to know where the specific change that deregulated restaurants' bar areas came from or who promoted it.
Seven-term Republican State Senator Ralph Hise, who represents a swath of counties in the northwestern part of the state, was a primary sponsor of the bill. The other primary sponsor was three-term Republican State Senator Todd Johnson, who represents Cabarrus and Union counties. Neither responded to WHQR's requests for comment.
Below: The Q&A from NCDHSS.
NCDHHS -- QnA For SB470 by Ben Schachtman on Scribd
