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AB-626 California Retail Food Code: microenterprise home kitchen operations.(2017-2018)

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Date Published: 04/07/2017 04:00 AM
AB626:v97#DOCUMENT

Amended  IN  Assembly  April 06, 2017
Amended  IN  Assembly  March 23, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 626


Introduced by Assembly Members Eduardo Garcia and Arambula

February 14, 2017


An act to amend Section 113789 of, Sections 113789, 114101, 114130, 114285, and 114390 of, to add Section 113806.5 113825 to, and to add Chapter 11.6 (commencing with Section 114367) to Part 7 of Division 104 of, the Health and Safety Code, relating to the California Retail Food Code.


LEGISLATIVE COUNSEL'S DIGEST


AB 626, as amended, Eduardo Garcia. California Retail Food Code: homemade food operation. microenterprise home kitchen operations.
Existing law, the California Retail Food Code, establishes uniform health and sanitation standards for retail food facilities for regulation by the State Department of Public Health. Health, and requires local health agencies to enforce these provisions. Existing law defines “food facility” as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, as specified. Existing law exempts, among others, a private home, including a registered or permitted cottage food operation, from the definition of food facility. A violation of any provision of the California Retail Food Code or regulation adopted pursuant to it is generally a misdemeanor.

This bill would make legislative findings and declarations relating to restrictions associated with retail food facilities and cottage food operations and difficulties for home cooks to independently benefit from their labor, skills, and limited resources. The bill would exempt a homemade food operation from the definition of food facility. The bill would define “homemade food operation” as an enterprise in a private home for the use of a home kitchen for small-scale, direct food sales by a home cook to consumers, with appropriate flexibility in determining the food types to be sold. The bill would require the department to regulate homemade food operations in a manner that ensures appropriate and sufficient health and sanitation standards. By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

This bill would repeal the exemption of a private home from the definition of a food facility. This bill would, among other things, include a microenterprise home kitchen operation within the definition of a food facility, and would define a microenterprise home kitchen operation to mean a food facility that is operated by a resident of a private home where food is prepared for a consumer and that meets specified requirements, including, among others, that the operation has no more than one full-time equivalent food employee and has no more than $50,000 in verifiable gross annual sales. The bill would require a microenterprise home kitchen operation to be considered a restricted food service facility for purposes of certain provisions of the code, except as otherwise provided. The bill would require the applicant for a permit to operate a microenterprise home kitchen operation to submit to the enforcement agency written standard operating procedures that include specified information, including all food products that will be handled and the days and time that the home kitchen will be utilized as a microenterprise home kitchen operation. The bill would also make conforming changes and related findings and declarations.
By imposing duties on local officials and creating a new crime, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) California is the largest agricultural producer and exporter in the United States.
(2) California is home to the “farm-to-table” movement, which embraces the idea that restaurants and other food sellers should prioritize locally and sustainably produced foods.
(3) Many cities have embraced the idea of locally grown, produced, and prepared foods. Sacramento, for example, proclaimed itself the farm-to-fork capital of America.
(4) Accordingly, Californians have shown a preference for supporting local agriculture and local business and for finding sustainable solutions to food insecurity.
(5) The retail and commercial food market is an integral part of California’s economy.
(6) Small-scale, home-cooking operations can create significant economic opportunities for Californians that need them most — often women, immigrants, and people of color.
(7) Under existing law, individuals can sell food through retail food facilities or cottage food operations, the latter of which being limited to a restricted list that primarily consists of nonperishable food items that can be prepared in the home. Both of these options make it difficult for the vast majority of home cooks to independently benefit from their labor, skills, and limited resources.
(8) Because the bar for entry to restaurant ownership is high, and the cost of renting a retail kitchen is so great, an informal economy of locally produced and prepared hot foods exists in the form of meal preparation services, food carts, and communally shared meals.
(9) However, due to a lack of appropriate regulations, many experienced cooks in California are unable to legally participate in the locally prepared food economy and to earn an income legally therein.
(10) As a result, and because they feel they have no other option, thousands of private chefs, home caterers, and many other food microentrepreneurs cook out of private homes or unlicensed food facilities, with little access to education for best practices or safety guidelines.
(11) Many of these cooks are unable to enter the traditional food economy based on disability, family responsibilities, or lack of opportunity.
(12) Under existing law, preparing and selling food from a home kitchen normally can be treated as a criminal act and may be punishable as a misdemeanor.
(13) Therefore, the Legislature should create a framework that authorizes the safe preparation and sale of meals prepared in home kitchens, providing adequate regulations and requirements for food handling and safety.
(14) Providing guidelines, training, and safety resources to home cooks would also increase public health safeguards in existing informal food economies.
(15) The exchange of home-cooked food can also improve access to healthy foods for communities, particularly in food deserts with severely limited options.
(16) The California Retail Food Code establishes health and sanitation standards for retail food facilities. That law exempts private homes from the definition of a food facility and includes cottage food operations in that exemption.
(b) It is the intent of the Legislature that this act authorize the use of home kitchens for small-scale, direct food sales by home cooks to consumers, providing appropriate flexibility in food types and appropriate health and sanitation standards.

SEC. 2.

 Section 113789 of the Health and Safety Code is amended to read:

113789.
 (a) “Food facility” means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, including, but not limited to, the following:
(1) An operation where food is consumed on or off the premises, regardless of whether there is a charge for the food.
(2) A place used in conjunction with the operations described in this subdivision, including, but not limited to, storage facilities for food-related utensils, equipment, and materials.
(b) “Food facility” includes permanent and nonpermanent food facilities, including, but not limited to, the following:
(1) Public and private school cafeterias.
(2) Restricted food service facilities.
(3) Licensed health care facilities, except as provided in paragraph (12) of subdivision (c).
(4) Commissaries.
(5) Mobile food facilities.
(6) Mobile support units.
(7) Temporary food facilities.
(8) Vending machines.
(9) Certified farmers’ markets, for purposes of permitting and enforcement pursuant to Section 114370.
(10) Farm stands, for purposes of permitting and enforcement pursuant to Section 114375.
(11) Fishermen’s markets.
(12) Microenterprise home kitchen operations.
(c) “Food facility” does not include any of the following:
(1) A cooperative arrangement wherein no permanent facilities are used for storing or handling food.

(2)A private home, which includes, but is not limited to, either of the following:

(A)

(2) A cottage food operation that is registered or has a permit pursuant to Section 114365.

(B)A homemade food operation, as defined in Section 113806.5.

(3) A church, private club, or other nonprofit association that gives or sells food to its members and guests, and not to the general public, at an event that occurs not more than three days in any 90-day period.
(4) A for-profit entity that gives or sells food at an event that occurs not more than three days in a 90-day period for the benefit of a nonprofit association, if the for-profit entity receives no monetary benefit, other than that resulting from recognition from participating in an event.
(5) Premises set aside for wine tasting, as that term is used in Section 23356.1 of the Business and Professions Code, or premises set aside by a beer manufacturer, as defined in Section 25000.2 of the Business and Professions Code, and in the regulations adopted pursuant to those sections, that comply with Section 118375, regardless of whether there is a charge for the wine or beer tasting, if no other beverage, except for bottles of wine or beer and prepackaged nonpotentially hazardous beverages, is offered for sale or for onsite consumption and no food, except for crackers, pretzels, or prepackaged food that is not potentially hazardous food is offered for sale or for onsite consumption.
(6) An outlet or location, including, but not limited to, premises, operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted at an outlet or location controlled by the producer.
(7) A commercial food processing establishment, as defined in Section 111955.
(8) A child day care facility, as defined in Section 1596.750.
(9) A community care facility, as defined in Section 1502.
(10) A residential care facility for the elderly, as defined in Section 1569.2.
(11) A residential care facility for the chronically ill, which has the same meaning as a residential care facility, as defined in Section 1568.01.
(12) (A) An intermediate care facility for the developmentally disabled, as defined in subdivisions (e), (h), and (m) of Section 1250, with a capacity of six beds or fewer.
(B) A facility described in subparagraph (A) shall report any foodborne illness or outbreak to the local health department and to the State Department of Public Health within 24 hours of the illness or outbreak.
(13) A community food producer, as defined in Section 113752.

SEC. 3.Section 113806.5 is added to the Health and Safety Code, to read:
113806.5.

(a)“Homemade food operation” means an enterprise in a private home for the use of a home kitchen for small-scale, direct food sales by a home cook to consumers, with appropriate flexibility in determining the food types to be sold, and regulated pursuant to Chapter 11.6 (commencing with Section 114367).

(b)For purposes of this section, “private home” means a dwelling, including an apartment or other leased space, where individuals reside.

SEC. 3.

 Section 113825 is added to the Health and Safety Code, to read:

113825.
 (a) “Microenterprise home kitchen operation” means a food facility that is operated by a resident in a private home where food is prepared for a consumer and meets all of the following requirements:
(1) The operation has no more than one full-time equivalent food employee, not including a family member or household member.
(2) Food is prepared, cooked, and served on the same day, picked up by the customer, or delivered within a safe time period based on holding equipment capacity.
(3) Food preparation does not involve processes that require a HACCP plan, as specified in Section 114419, or the production, service, or sale of raw milk or raw milk products, as defined in Section 11380 of Title 17 of the California Code of Regulation.
(4) The service and sale of raw oysters is prohibited.
(5) Food preparation is limited to no more than 30 individual meals per day, and no more than 60 individual meals per week, unless otherwise approved by the local enforcement agency based on food preparation capacity of the operation.
(6) The operation has no more than fifty thousand dollars ($50,000) in verifiable gross annual sales.
(b) “Microenterprise home kitchen operation” does not include any of the following:
(1) A catering operation.
(2) A cottage food operation, as defined in Section 113758.
(3) An indirect sale.

SEC. 4.

 Section 114101 of the Health and Safety Code is amended to read:

114101.
 (a) Mechanical machine warewashing shall be accomplished by using an approved machine installed and operated in accordance with the manufacturer’s specifications.
(b) Soiled items to be cleaned in a warewashing machine shall be loaded in racks, trays, or baskets or onto conveyors in a position that exposes the items to the unobstructed spray during all cycles and allows the items to drain.
(c) The velocity, quantity, and distribution of the washwater, type, and concentration of detergent used therein, and the time the utensils are exposed to the water shall be sufficient to clean the utensils.
(d) Restricted food service facilities need not comply with Section 114130 if the domestic or commercial dishwasher utilized for warewashing is capable of providing heat to the surface of the utensils of a used in accordance with the manufacturer’s specifications and achieves a utensil surface temperature of at least 160°F.

SEC. 5.

 Section 114130 of the Health and Safety Code is amended to read:

114130.
 (a) Equipment and utensils shall be designed and constructed to be durable and to retain their characteristic qualities under normal use conditions.
(b) Except as specified in subdivision (c), all new and replacement food-related and utensil-related equipment shall be certified or classified for sanitation by an American National Standards Institute (ANSI) accredited certification program. In the absence of an applicable ANSI certified sanitation standard, food-related and utensil-related equipment shall be evaluated for approval by the enforcement agency.
(c) Restricted food service facilities need not comply with subdivision (b), depending on the extent of the food service activities, and if the enforcement officer determines that the equipment meets the characteristics of subdivision (a).
(d) All new and replacement electrical appliances shall meet applicable Underwriters Laboratories standards for electrical equipment as determined by an ANSI accredited certification program.
(e) Notwithstanding subdivision (c), equipment for holding cold and hot food in a restricted food service facility shall be sufficient in number and capacity to ensure proper food temperature control.

SEC. 6.

 Section 114285 of the Health and Safety Code is amended to read:

114285.
 (a) Except as specified in subdivision (b), a private home, a room used as living or sleeping quarters, or an area directly opening into a room used as living or sleeping quarters shall not be used for conducting food facility operations.
(b) (1) Nonperishable, prepackaged food may be given away, sold, or handled from a private home. No food that has exceeded the labeled shelf life date recommended by the manufacturer shall be deemed to be nonperishable food.
(2) For purposes of this subdivision, “nonperishable food” means a food that is not a potentially hazardous food, and that does not show signs of spoiling, becoming rancid, or developing objectionable odors during storage at ambient temperatures.
(c) Restricted food service facilities and microenterprise home kitchen operations are exempt from subdivision (a) provided that no sleeping accommodations shall be allowed in any area where food is prepared or stored.

SEC. 4.SEC. 7.

 Chapter 11.6 (commencing with Section 114367) is added to Part 7 of Division 104 of the Health and Safety Code, to read:
CHAPTER  11.6. Homemade Food Operations Microenterprise Home Kitchen Enterprise
114367.

The department shall regulate homemade food operations, as defined in Section 113806.5, in a manner that ensures appropriate and sufficient health and sanitation standards.

114367.
 (a) A microenterprise home kitchen operation, as defined in Section 113825, shall be considered a restricted food service facility for purposes of, and subject to all applicable requirements of, Chapter 1 (commencing with Section 113700) to Chapter 8 (commencing with Section 114250), inclusive, Chapter 12.6 (commencing with Section 114377), and Chapter 13 (commencing with Section 114380), except as otherwise provided in this chapter.
(b) A microenterprise home kitchen operation shall be exempt from all of the following provisions:
(1) Handwashing sign posting requirements, as specified in Section 113953.5.
(2) Handwashing facilities requirements, as required in Section 113953, provided that a handwashing sink is supplied with warm water and located in the toilet room and supplied, as specified in Section 113953.2.
(3) Installing a three-compartment sink, as required in Section 114099, provided that a two-compartment sink is available and used, as specified in Section 114099.3.
(4) Installing a food preparation sink, as required in Section 114163, provided that produce is washed, as specified in Section 113992.
(c) Any individual who is involved in the preparation, storage, or service of food in a microenterprise home kitchen operation shall be subject to the food handler card requirements specified in Section 113948.

114367.5.
 (a) A microenterprise home kitchen operation shall not be open for business unless it is operating under a permit issued from the local enforcement agency in a manner approved by the local enforcement agency.
(b) The applicant shall submit to the local enforcement agency written standard operating procedures that include all of the following information:
(1) All food products that will be handled.
(2) The proposed procedures and methods of food preparation and handling.
(3) Procedures, methods, and schedules for cleaning utensils, equipment, and for the disposal of refuse.
(4) How food will be maintained at the required holding temperatures as specified in Section 113996, pending pickup by consumer or during delivery.
(5) Days and times that the home kitchen will be utilized as a microenterprise home kitchen operation.
(c) For purposes of permitting, the permitted area includes the home kitchen, onsite customer eating area, food storage, utensils and equipment, toilet room, janitorial or cleaning facilities, and refuse storage area. Food operations shall not be conducted outside of the permitted areas.
(d) (1) For purposes of determining compliance with this chapter, a representative of a local enforcement agency, for inspection purposes, may access the permitted area of a private home where a food operation is being conducted. Access is limited to the permitted areas and solely for the purpose of enforcing or administering this part.
(2) A representative of a local enforcement agency may inspect a microenterprise home kitchen operation on the basis of a consumer complaint, reason to suspect that adulterated or otherwise unsafe food has been produced by the operation, or that the operation has violated this part.

SEC. 5.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 8.

 Section 114390 of the Health and Safety Code is amended to read:

114390.
 (a) Enforcement officers shall enforce this part and all regulations adopted pursuant to this part.
(b) (1) For purposes of enforcement, any authorized enforcement officer may, during the facility’s hours of operation and other reasonable times, enter, inspect, issue citations to, and secure any sample, photographs, or other evidence from a food facility, cottage food operation, or any facility suspected of being a food facility or cottage food operation, or a vehicle transporting food to or from a retail food facility, when the vehicle is stationary at an agricultural inspection station, a border crossing, or at any food facility under the jurisdiction of the enforcement agency, or upon the request of an incident commander.
(2) If a food facility is operating under an HACCP plan, the enforcement officer may, for the purpose of determining compliance with the plan, secure as evidence any documents, or copies of documents, relating to the facility’s adherence to the HACCP plan. Inspection may, for the purpose of determining compliance with this part, include any record, file, paper, process, HACCP plan, invoice, or receipt bearing on whether food, equipment, or utensils are in violation of this part.
(3) The enforcement officer may, for the purpose of determining compliance with the gross annual sales requirements for operating a microenterprise home kitchen operation or a cottage food operation, require those operations to provide copies of documents related to determining gross annual sales.
(c) Notwithstanding subdivision (a), an employee may refuse entry to an enforcement officer who is unable to present official identification showing the enforcement officer’s picture and enforcement agency name. In the absence of the identification card, a business card showing the enforcement agency’s name plus a picture identification card such as a driver’s license shall meet this requirement.
(d) It is a violation of this part for any person to refuse to permit entry or inspection, the taking of samples or other evidence, access to copy any record as authorized by this part, to conceal any samples or evidence, withhold evidence concerning them, or interfere with the performance of the duties of an enforcement officer, including making verbal or physical threats or sexual or discriminatory harassment.
(e) A written report of the inspection shall be made made, and a copy shall be supplied or mailed to the owner, manager, or operator of the food facility.

SEC. 9.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.