New Law Treats Microenterprise Home Kitchen Operations like Retail Food Establishments for Health and Sanitation Standards Enforcement

I. SUMMARY

Effective January 1, 2019, Assembly Bill 626 (“AB 626”) expands the scope of retail food sanitation standards to include “microenterprise home kitchen operations.” Similarly, Assembly Bill 2178 (“AB 2178”) applies food sanitation standards to “limited service charitable feeding operations.” While cities have discretion to authorize or prohibit the permitting of microenterprise home kitchen operations within their jurisdictions, a county ordinance permitting these operations will control over a conflicting city ordinance. Those agencies currently charged with enforcement of health and sanitation standards in retail food establishments (usually county health departments) will enforce these same standards in the microenterprise home kitchen operation context.

II. DISCUSSION

Microenterprise Home Kitchen Operations

AB 626 was enacted to support California’s “farm-to-table” movement and prioritize local and sustainable food sources. The Legislature recognized that currently many existing home-based food businesses operate without compliance with generally applicable food-safety regulations. To address this concern while supporting home-based food businesses, AB 626 creates a framework for these businesses to operate legally and subject to generally applicable health and sanitation standards.

The bill defines a “microenterprise home kitchen operation” as a food facility operated by a resident in a private home where food is stored, handled, and prepared for and may be served to consumers and that meets these additional requirements:¹

1. The operation has no more than one full-time equivalent employee not including a family/household member;
2. Food is prepared, cooked and served on the same day;
3. Food is consumed on-site or off-site if picked up or delivered within a safe time;
4. Food preparation does not involve processes that require a Hazard Analysis and Critical Control Point plan;
5. Raw oysters are not sold;
6. Services is limited to 30 meals per day and 60 meals per week;
7. Gross sales are limited to $50,000 annually;
8. Sales are only to the consumer.

AB 626 amends the Health & Safety code to apply general health and sanitation standards for food service to microenterprise home kitchen operations.² The bill also exempts these operations from certain standards³ and requires each operation to obtain a permit issued from the local enforcement agency, which is usually the county health department.⁴

While AB 626 purports to give cities “full discretion” to authorize the permitting of microenterprise home kitchen operations, “a permit issued by a county that has authorized the permitting of microenterprise home kitchen operations … shall be valid in any city within the county”⁵ even if that city has enacted a prohibition.

Limited Service Charitable Feeding Operations

AB 2178 defines a “limited service charitable feeding operation” as food service to a consumer solely for providing charity, conducted by a non-profit, and whose food service is limited to storage/distribution of whole produce or packaged food, heating/portioning/assembly of small commercially prepared food, or storage/distribution of potentially hazardous cold/frozen foods for distribution to the consumer.⁶ Various food sanitation standards apply to these operations based on the specific food services being performed by the non-profit.⁷ Cities should be aware that non-profits operating as charitable feeding operations must now register with the local health enforcement agency, which is the county health department in most cases.⁸

III. CONCLUSION

City ordinances that prohibit microenterprise home kitchen operations will not control over a conflicting county ordinance. Starting on January 1, 2019, these operations and limited service charitable feeding operations must obtain a permit from the county health department, and comply with regulations generally applicable to retail food establishments.

Information on www.jones-mayer.com is for general use and is not legal advice. This update is not intended to create, and receipt of it does not constitute, an attorney-client-relationship. Should you have any questions or require further clarification of the above, please contact Keith F. Collins at our office at (714) 446-1400, or by email kfc@jones-mayer.com.

¹Health & Saf. Code § 113825(a).
²Health & Saf. Code § 111955, 113789(b)(12).
³Health & Saf. Code §114367.1(b).
⁴Health & Saf. Code §114367.2(a).
⁵Health & Saf. Code § 114367(b).
⁶Health & Saf. Code § 113819.
⁷Health & Saf. Code § 114333.
⁸Health & Saf. Code § 114333(a)(1).