Chef upset after he's busted for foie gras

Chef upset after he's busted for foie gras

A daily special at a Lincoln Square restaurant has triggered the first -- and only -- official complaint stemming from Chicago's controversial ban on foie gras.

A caller to the city's 311 non-emergency system complained that foie gras was being served over the weekend at Block 44, 4365 N. Lincoln. The restaurant is not refuting the claim.

I know it wouldn't take those do gooders long to rat someone out.

City Health Department spokesman Tim Hadac said the 311 complaint will trigger a letter to Block 44 "reminding them of the law and letting them know we expect compliance."

"If we get a second complaint, we'll be out there, ticket book in hand. If we find a violation if and when we inspect, we'll write 'em a ticket for $250," Hadac said

I knew there would be a volunteer army of foie gras narcs. Still, it sure doesn't sound like the CHD is very eager to begin enforcement.

I admit that my recollection of the nuances of the law are fuzzy . . . but I thought that it was okay to serve foie gras if it was given away by the restaurant. In fact, I've noticed a few restaurants who serve foie gras note that it was a freebie on their menus. If that's true, why didn't this chef say he was comping it? I can't imagine that the city would go so far as to forensically investigate a restaurants' records to determine whether or not foie gras was, indeed, actually a freebie.

aschie30 wrote:I admit that my recollection of the nuances of the law are fuzzy . . . but I thought that it was okay to serve foie gras if it was given away by the restaurant. In fact, I've noticed a few restaurants who serve foie gras note that it was a freebie on their menus. If that's true, why didn't this chef say he was comping it? I can't imagine that the city would go so far as to forensically investigate a restaurants' records to determine whether or not foie gras was, indeed, actually a freebie.

As clever as the "freebie" approach sounds, I think it would be considered a pretty transparent attempt to circumvent the regulation and would not be considered a real defense. Sure, you could charge $14 for the garnish, call it a "salad" and claim the foie gras was a free add-on, "compliments of the chef." But you wouldn't really be fooling anyone, least of all the Department of Health. I am pretty well convinced that you, chef, would be found to be selling the "freebie" foie gras.

Here's a more extreme and obvious case that may help show why I think this way. The City of Chicago bans the sale of spray paint and has for years. Imagine if a store owner started selling paper bags for $3.49 each, and asked each customer buying a $3.49 bag whether they would like a complimentary can of spray paint to go with their bag. Maybe they put a sign up to make sure people were aware of the "freebie" offer. Think the City would approve of that? Neither do I.

Now regarding foie gras "freebies," consider the following. The law loves to argue by analogy. Just equate the garnish with the paper bag and the foie gras (the banned product) with the can of spray paint. See my point?

Now, I hear some of you saying, "Wait a minute! That's not the same thing! Spray paint is basically a tool for graffiti artists, a tool for criminals (or at least it can be and very often is). Foie gras isn't a criminal's tool." Point well taken. The analogy does break down, if you are trying to make arguments about the broader, underlying purposes of legislation and the proper limits on the authority of the government to legislate commerce -- i.e., if you are arguing as to whether the ban on foie gras is justified in the first place. But, if you grant the foie gras ordinance as fait accompli, and are merely judging how the City would or could enforce this existing law, then you must admit it could be enforced against "foie gras freebies." At least, it would almost certainly be considered a sham attempt to "give away" foie gras, while you were actually being paid for it through hidden (or not-so-hidden) charges on other food or services sold by the restaurant.

Maybe if you had one day a month where EVERYTHING was free, then you could give away some foie gras and it wouldn't be a sham. Or maybe if you establish a regular policy of free foie gras for every customer, no charge for the plate or the garnish, like the Milk Duds they hand out at Joe Mitchell's. Then you get really clever and just incrementally raise prices on all your food, or the liquor. That way, you could create a "foie gras tax," hidden from sight and unprovable, that would spread out the costs and allow you this practice.

But then, you'd be making all your customers subsidize the tastes of a few. Hmm. That could cut into the rest of your business. And then, what if 85% or 95% of your customers suddenly take a liking to FREE foie gras (when only maybe 10% ordered it when they had to pay $14 for it). Your "foie gras tax" could price you right out of the market on the other food and drinks you serve. So, maybe that's not a practical solution, either...

Anyway, don't get the idea I support this ban. I do not. Nor do I think the City Dept. of Health is fired up about enforcing it. But they will enforce it if complaints continue; that is their function. And they won't fall for any gimmicks or sham "freebies," either.

What about a foie gras amuse bouche? It's not on the menu, no money is directly trading hands for it. It would be kind of like the milk duds, indeed.

You could even give people the choice between a foie gras amuse and something more politically correct and, I'd imagine, still be legal.

gleam wrote:What about a foie gras amuse bouche? It's not on the menu, no money is directly trading hands for it. It would be kind of like the milk duds, indeed.

You could even give people the choice between a foie gras amuse and something more politically correct and, I'd imagine, still be legal.

There you go, that might do the trick. So long as it's clearly optional (i.e., not a regular part of the meal), and just a nip of foie gras, such that the economics made sense. But then, would just an amuse satisfy folks for very long? I think people want a couple of ounces of foie gras, not just a nibble.

I'm sure one could find a way to give it away but, as Jim indicates above, in the long run, that doesn't seem like it will be very wise for restaurant owners. A point in the article about the guy who got busted: he had some, didn't want to let it go bad and waste it, so he took his chances and sold it. It is expensive, it is perishable, and I suspect the threat of even the most lackadaisical enforcement will be pretty effective. I also suspect that any general offering -- as in an amuse gueule offered to everyone -- would be on questionable ground legally.

Perhaps as a publicity stunt, it would make sense to give it away, but how far would that go? In the end, would it be worth it?

Antonius

Antonius wrote:I also suspect that any general offering -- as in an amuse gueule offered to everyone -- would be on questionable ground legally.

You are probably right, although I am not familiar at all with the caselaw on this topic. I can imagine, but do not know, that there are cases holding that anything put on general offer at a restaurant is considered in some sense a "sale," as part of the restaurant's general participation in commerce, or some such theory. One thing I do know is that it is going to be very interesting watching this develop in the courts, with the suits that have already been filed.

Jim,

I'm sure there is wild variation in these things but on average, how long will it likely take these cases to move through the system?

A

And now the incident has been honored by a link on www.fark.com. (And it gets the "asinine" tag, to boot!)

Oh, Chicago, you make me proud!

I'd like to find the person who ratted and punch them square in the liver.

I can imagine, but do not know, that there are cases holding that anything put on general offer at a restaurant is considered in some sense a "sale," as part of the restaurant's general participation in commerce, or some such theory.

I do not know the case law on this either, but my sense is that it depends on how the amuse is "served." Which is to say, if the amuse is included in a prix-fixe dinner, it would likely be considered a sale on the theory that the price includes everything "presented" by the restaurant in the course of that dinner. Whereas if the amuse is presented to every patron, regardless of the "kind" of dinner purchased, it would seem more likely to pass strict scrutiny. (And if it is specifically excluded from the prix-fixe, presented, instead, "with the compliments of the chef," you'll have a hard time proving a "sale.")

Ultimately, though, this is one of those wonderful gray areas where prosecutorial discretion is given a wide berth. And that, in turn, will depend on instructions from above about how vigorously to enforce the law.

Actually I found it on Fark. They've been covering it relentlessly for the past few months.

JimInLoganSquare wrote:Here's a more extreme and obvious case that may help show why I think this way. The City of Chicago bans the sale of spray paint and has for years. Imagine if a store owner started selling paper bags for $3.49 each, and asked each customer buying a $3.49 bag whether they would like a complimentary can of spray paint to go with their bag. Maybe they put a sign up to make sure people were aware of the "freebie" offer. Think the City would approve of that? Neither do I.

Now regarding foie gras "freebies," consider the following. The law loves to argue by analogy. Just equate the garnish with the paper bag and the foie gras (the banned product) with the can of spray paint. See my point?

Yes, lawyers love analogies. But it's easy to distinguish a lot of cases from other cases. What does the spray paint law say? Is it broader than the foie gras statute? Does it impose criminal sanctions as opposed to mere fines? You see my point. There are dozens of ways lawyers get around such analogies, as JiLS succintly pointed out.

I understand JiLS' point that restaurants would be rendering the law meaningless by being cute and giving away the foie gras instead of selling it. But that all depends upon whether the city wants to enforce it or not. In the case of the article, the chef essentially admitted that he was selling foie gras -- his defense was that he had some left over, and didn't want to waste it.

In any case, two points stand: (1) restaurants ARE giving foie gras away -- I've seen it -- and I presume some of them consulted legal counsel first; and (2) enforcement of the ban is inherently a problem, as demonstrated by the reluctant slap on the wrist that the city claims they'll give to the restaurant owner in the article.

I expect that, like the smoking ban, there will be those para-police people running around for the first few months, reporting every potential offender to the city. Then, it will slow down. In fact, I predict that in a few years, foie gras will creep back onto Chicago menus just like liquor did during Prohibition.

Antonius wrote:Jim,

I'm sure there is wild variation in these things but on average, how long will it likely take these cases to move through the system?

A

In my experience, in the circus court of Cook County, it could take one case years to move through the system.

I doubt it would go through Circuit Court, I would expect it would go through administrative hearings.

atomicman wrote:I doubt it would go through Circuit Court, I would expect it would go through administrative hearings.

I think Antonius was asking about the test case that was filed by the Illinois Restaurant Association, which may well be in Cook County Circuit Court, I don't know. In any event, they'll no doubt be seeking an injunction against enforcement of the law, which would be issued relatively shortly, if at all.

my recollection of the ordinance that passed was that the offending restaurant would be fined $250 a day for every day the violation takes place (not $250 per offense as you might expect). for high end restaurants, that's peanuts.

could be wrong though.

aschie30 wrote:

JimInLoganSquare wrote:Here's a more extreme and obvious case that may help show why I think this way. The City of Chicago bans the sale of spray paint and has for years. Imagine if a store owner started selling paper bags for $3.49 each, and asked each customer buying a $3.49 bag whether they would like a complimentary can of spray paint to go with their bag. Maybe they put a sign up to make sure people were aware of the "freebie" offer. Think the City would approve of that? Neither do I.

Now regarding foie gras "freebies," consider the following. The law loves to argue by analogy. Just equate the garnish with the paper bag and the foie gras (the banned product) with the can of spray paint. See my point?

Yes, lawyers love analogies. But it's easy to distinguish a lot of cases from other cases. What does the spray paint law say? Is it broader than the foie gras statute? Does it impose criminal sanctions as opposed to mere fines? You see my point. There are dozens of ways lawyers get around such analogies, as JiLS succintly pointed out.

I understand JiLS' point that restaurants would be rendering the law meaningless by being cute and giving away the foie gras instead of selling it. But that all depends upon whether the city wants to enforce it or not. In the case of the article, the chef essentially admitted that he was selling foie gras -- his defense was that he had some left over, and didn't want to waste it.

Yep. The point I was trying to make by analogizing to the spray paint ban was not a legal argument, but an attempt to predict what type of reasoning might go through the heads of the Chicago Department of Health IF they decided to enforce the foie gras ban and IF they were faced with the question of whether to TRY to enforce it against someone who made such a transparent attempt. As noted above, enforcement is an area where the City has considerable discretion. This is as much a matter of necessity as anything else -- it would be impossible for them to enforce every ordinance, equally and at all times throughout every part of the City, unless they hired half a million more cops. The City can't be held to an impossible standard and therefore is allowed some leeway in what it enforces, how and when, as long as they aren't using some invidious distinction like race or religion to determine when ... err, well, maybe not the best example.

Anyway, this gives me an idea. You know all those new cameras they are placing at stoplights around the City to photograph scofflaws and automatically send out tickets? And the blue-flashing light cams that let them monitor every block in the City ... err, well, certain prime locations in the City ... for signs of crime, probable cause or suspicious behavior? (There's a reason those things are made bullet-proof.) Anyway, those are a perfect example of technology giving the City government the ability to enforce laws -- laws that the City always had the authority to enforce at any time, and any place -- that it could not practically enforce before the technology existed. So, how about installing Foie Gras Cams in the kitchens of restaurants throughout the City? Maybe with computerized sniffers that, like bomb sniffing equipment recently installed at Midway, would shoot a puff of air over every plate served and detect the presence of even a single foie gras molecule! These devices could document any number of other "health" violations, too. And could be labelled with user-friendly language, such as "This state-of-the-art foie gras, scab and nosepicking detector has been installed for your safety and comfort." Of course, this would only be in the kitchen, not the dining room; at least for the time being. It's a great idea whose time has surely come.

Funny JiLS should use a spray paint analogy. I just saw the accused chef on the news. He said something to the effect that the city had much more important things to worry about than foie gras, "for example my door over there is covered in graffiti, but nobody seems to care about that". I suppose there is a lesson in irony there somewhere.

d4v3 wrote:Funny JiLS should use a spray paint analogy. I just saw the accused chef on the news. He said something to the effect that the city had much more important things to worry about than Foie Gras, "for example my door over there is covered in grafitti, but nobody seems to care about that". I suppose there is a lesson in irony there somewhere.

Not be a volunteer booster for the City, but credit where credit is due: If that chef had just called 311 himself, Grafitti Busters would have been on the case pretty quickly. I've actually had excellent responses from them, including multiple cases of calling them for my own property and that of others in the neighborhood; they didn't ask or care who I was or whether I owned the property. So, be a good citizen, chef ... call 311. Or not, if the noted offense does not bother you. Likewise to the foie gras posses roaming Chicago restaurants.

For what it's worth, the chef in question isn't the only one to be serving foie gras post-ban. Within the past few days I've seen it, staring there at me and everyone else, on the menu at a pretty busy restaurant.

gleam wrote:For what it's worth, the chef in question isn't the only one to be serving foie gras post-ban. Within the past few days I've seen it, staring there at me and everyone else, on the menu at a pretty busy restaurant.

Eatchicago and I and our spouses enjoyed some "special duck liver" at Sweets & Savories last week, one day into the ban. It was delicious and therefore I did not call 311.

JimInLoganSquare wrote:Not be a volunteer booster for the City, but credit where credit is due: If that chef had just called 311 himself, Grafitti Busters would have been on the case pretty quickly. I've actually had excellent responses from them, including multiple cases of calling them for my own property and that of others in the neighborhood; they didn't ask or care who I was or whether I owned the property. So, be a good citizen, chef ... call 311. Or not, if the noted offense does not bother you. Likewise to the foie gras posses roaming Chicago restaurants.

Oh, you're preachin' to the choir here on 311. 311 is the means for the city's real pit bulls and takes on a Stalinist/Gestapo-like form, what with the way neighbors anonymously nark on neighbors through it. One call to 311 and they'll do something. Maybe not the most effective something, but something. My neighbor's dilapidated garage is being torn down due to an anonymous 311 call. (Did you know that Mayor Daley has an eponymous Dilapidated Garage Demotion Program? I didn't.) A restaurant I know was dinged because some patron called 311 complaining that they allowed smoking at the bar at the restaurant (something that is legal in their case). The restaurant was sent a letter by the city telling the owner that there was a reported violation by them of the smoking ban (there wasn't). I've called graffiti busters and they've had the graffiti down in less than a week.

My guess is that unless a restaurant is getting repeated foie gras complaints via 311, the city's probably not going to do much to enforce the ban.

aschie30 wrote:

JimInLoganSquare wrote:Not be a volunteer booster for the City, but credit where credit is due: If that chef had just called 311 himself, Grafitti Busters would have been on the case pretty quickly. I've actually had excellent responses from them, including multiple cases of calling them for my own property and that of others in the neighborhood; they didn't ask or care who I was or whether I owned the property. So, be a good citizen, chef ... call 311. Or not, if the noted offense does not bother you. Likewise to the foie gras posses roaming Chicago restaurants.

Oh, you're preachin' to the choir here on 311. 311 is the means for the city's real pit bulls and takes on a Stalinist/Gestapo-like form, what with the way neighbors anonymously nark on neighbors through it. One call to 311 and they'll do something. Maybe not the most effective something, but something. My neighbor's dilapidated garage is being torn down due to an anonymous 311 call. (Did you know that Mayor Daley has an eponymous Dilapidated Garage Demotion Program? I didn't.) A restaurant I know was dinged because some patron called 311 complaining that they allowed smoking at the bar at the restaurant (something that is legal in their case). The restaurant was sent a letter by the city telling the owner that there was a reported violation by them of the smoking ban (there wasn't). I've called graffiti busters and they've had the graffiti down in less than a week.

My guess is that unless a restaurant is getting repeated foie gras complaints via 311, the city's probably not going to do much to enforce the ban.

on the other hand

...I suppose 311 might be abused for Gestapo-esque nonsense, but they were always pretty handy when it came to busting up the winos/bums sleeping, pooping, fighting, whoring, drinking, singing and dying in the alley beneath my old WP apartment

I was just looking this up again - are the restaurants the only places where foie gras is banned? Are grocers exempt?

I just find that odd.

There was some discussion about this. I think what it came down to was how the grocery store is licensed, and a place like Fox and Obel might not be able to sell it in the grocery store because it also holds a restaurant license for the Cafe.

I don't really remember the details.... ah, yes, here's JiLS talking about it.

ab wrote:I'd like to find the person who ratted and punch them square in the liver.

I'll help you

alysongrace wrote:

ab wrote:I'd like to find the person who ratted and punch them square in the liver.

I'll help you

Me, too, so long as we can get there by El.