Much like a car owner is responsible for the safety and drivability of their vehicle before hitting the road, public health officials say a business owner is responsible for ensuring their facility is able to follow regulations set out by the province before opening.
The job of local health inspectors is to enforce those regulations, explained Tony Makrostergios, program manager with the food safety, smoke-free, enforcement and environmental health department for the Simcoe Muskoka District Health Unit (SMDHU).
“The regulations say that as a business owner, you are responsible for A, B and C. If you can’t … that is unfortunate, but there is nothing we can do about that,” he said.
“It’s back to the analogy of the car. If your car has some sort of problem (and) you can’t fix it, it’s not up to the officer to figure that out. Your job, if you want to use that vehicle on the road, is to have a working tail light. Your job if you want to run a restaurant is to make sure you follow the regulations.”
Education comes first
The local health unit uses what Makrostergios calls a “progressive enforcement approach,” which means education comes first.
Depending on the infraction, an owner/operator is provided a certain amount of time to fix the infraction. It could be something that is required to be fixed immediately and before the inspector leaves, he said, or it could be something that has to be fixed within a day — as long as there is some way to do what is called an “acceptable temporary measure.”
“For example, if a dishwasher is broken, if you have big enough sinks and the proper equipment, you can do dishwashing using the three-sink method for a day as long as you get your dishwasher fixed,” said Makrostergios.
Every situation is unique, he added, but should education not work, that’s when the tickets come into play.
“That is our very last option. We don’t want to issue charges. We want people to just fix it and move on. We’d actually rather go in and there be no issues, and that’s where the education comes in,” he said.
“Inspectors try very hard to work with individuals and explain things. Unfortunately, sometimes things just don’t work out, and that’s where the tickets come in. At that point, it is out of our hands and within the court. I can’t withdraw a ticket and I can’t adjust anything.”
Different options
After an inspector lays a charge, the person who receives the ticket has a set number of days to respond — the same as if they got pulled over for speeding, for example.
They also have several options for addressing the ticket, Makrostergios noted. A person can plead guilty and pay the fine, plead guilty but with an explanation in an effort to have the amount of the fine reduced or the time to pay extended, or plead not guilty and opt to fight the ticket in court.
“Those are your three options. What happens sometimes is some individuals get the tickets, but they don’t do anything with them. They don’t pay them. They don’t respond. At that point, there is a court date that’s been set up,” he said.
“If you don’t show up to court, then you are convicted and fined. Whatever the ticket’s set fine is, that is what you owe, and next case.”
These fines all follow the Provincial Offences Act, Makrostergios said, noting a justice of the peace has the authority to adjust the fine if they believe the individual needs help with either the amount or the duration to pay it.
“It also depends on the history. That is where previous inspections or charges play in,” he said, pointing to Section 9.1 of the Provincial Offences Act, which states “a defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of the time and place of trial and fails to appear at the time and place appointed for the trial.”
What that boils down to is simple, said Makrostergios.
“You are now convicted. There is only one witness there to say, ‘This is what happened,’” he said, noting depending on the charges, an owner/operator might send a lawyer or a representative to address a charge.
Getting to court, Makrostergios added, has been made a lot simpler in recent years, given that many provincial courts still use the option of virtual appearances.
“Ever since COVID, there have been some court situations where you can call in by Zoom. It even goes a step further and you can phone in,” he said.
As is the case with all provincial offences, he said, the officer has seven days from providing a ticket to file it with the court. Then there is the set time frame that allows an individual to either make the payment or opt to contest it in court.
Following that, there are typically a couple of weeks in between where the courts have to sort through charges and match them up with those who have paid their fines or those who require a court date. Depending on the court schedule, getting a court date could take several months, he said.
During that time, however, the expectation is still that an owner/operator fixes whatever issue they were fined for.
“Clearly, you are getting a ticket because you haven’t fixed it yet (and) whether you fix it or not, you still have that fine,” said Makrostergios.
Should an inspector return and find an issue has still not been addressed, that could result in a variety of actions, he added.
“It could go straight to court, (result in) a closure or additional fines. It really depends on the severity of what is there,” he said.
Regular updates
Inspection Connection is the main portal the local health unit uses to disclose information obtained from inspections.
“When it comes to food premises, we have to post all of their inspections and complaints — if they are substantiated — on the website and are required to stay on the website for a certain number of years,” Makrostergios said, noting information from those inspections is posted within a couple of days.
Information on the enforcement side is updated within one day of any sort of change, he said.
Should a case be taken to court, it could mean several months pass between when the inspection occurs and when the information is updated.
“As soon as that changes from a charge to a conviction, or if it gets thrown out, then we completely remove it from the website within a matter of hours. The website, although there may be a slight delay in getting information up or down, it’s accurate,” he said.
“If it says ‘conviction,’ then it is a conviction. How it got there — whether or not the individual went to court and was found guilty, whether or not the individual did not go to court and was found guilty … or maybe they pled guilty at a lesser fine — the fact remains it is a conviction.”
But the hope is it doesn’t get to that level.
“If you fix things, great. That is the whole point. That is what you’re supposed to do,” Makrostergios said. “That doesn’t change the fact that however many times that led to that initial charge, that (issue) still happened.”
Protecting the public
Ultimately, it’s the responsibility of the health unit to protect the public, said Makrostergios, who explained that inspectors will work with owners and operators as much as possible, as long as it’s not going to negatively affect the public.
“There are some things we can’t bend on, like temperatures or cleanliness, but if there’s a broken tile in the storage room, sure, we will give you a little bit of time,” he said. “There’s only so much we can do. We don’t want anyone to get sick, so if you can’t meet those minimums, unfortunately, depending on what it is, you might even get a closure.”
There is a lot that needs to happen between the first inspection and a facility getting convicted of an offence, Makrostergios reiterated.
“We don’t want to lay charges. We want to do an inspection, make sure everything is OK. If something is not, then (we want to) work with the operator. Charges are usually the case when education has failed or maybe the operator is unwilling,” he said.
“It’s not the first tool. It’s the last.”