Today's Law As Amended

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AB-377 Microenterprise home kitchen operations.(2019-2020)



SECTION 1.

 Section 113825 of the Health and Safety Code is amended 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 stored, handled, and prepared for, and may be served to, consumers, and that 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.
(3) Food is consumed onsite at the microenterprise home kitchen operation or offsite if the food is picked up by the consumer or delivered within a safe time period based on holding equipment capacity.
(4) 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 Regulations.
(5) The service and sale of raw oysters is prohibited.
(6) The production, manufacturing, processing, freezing, or packaging of milk or milk products, including, but not limited to, cheese, ice cream, yogurt, sour cream, and butter, is prohibited.
(6) (7)  Food preparation is limited to no more than 30 individual meals per day, or the approximate equivalent of meal components when sold separately, and no more than 60 individual meals, or the approximate equivalent of meal components when sold separately, per week. The local enforcement agency may decrease the limit of the number of individual meals prepared based on food preparation capacity of the operation, but shall not, in any case, increase the limit of the number of individual meals prepared.
(7) (8)  The operation has no more than fifty thousand dollars ($50,000) in verifiable gross annual sales, as adjusted annually for inflation based on the California Consumer Price Index.
(8) (9)  The operation only sells food directly to consumers and not to any wholesaler or retailer. For purposes of this paragraph, the sale of food prepared in a microenterprise home kitchen operation through the Internet Web site  internet website  or mobile application of an Internet food service intermediary, as defined in Section 114367.6, is a direct sale to consumers. An operation that sells food through the Internet Web site  internet website  or mobile application of an Internet food service intermediary shall consent to the disclosures specified in paragraphs (6) and (7) of subdivision (a) of Section 114367.6.
(b) “Microenterprise home kitchen operation” does not include either of the following:
(1) A catering operation.
(2) A cottage food operation, as defined in Section 113758.
(c) For purposes of this section, “resident of a private home” means an individual who resides in the private home when not elsewhere for labor or other special or temporary purpose.

SEC. 2.

 Section 114367 of the Health and Safety Code is repealed.

114367.
 (a) Except as provided in subdivision (b), the governing body of a city or county, or city and county, shall have full discretion to authorize, by ordinance or resolution, the permitting of microenterprise home kitchen operations in accordance with this chapter.
(b) A permit issued by a county that has authorized the permitting of microenterprise home kitchen operations in accordance with this chapter shall be valid in any city within the county regardless of whether the city has separately enacted an ordinance or resolution to authorize or prohibit the permitting of microenterprise home kitchen operations within that city.

SEC. 3.

 Section 114367 is added to the Health and Safety Code, to read:

114367.
 The governing body of a city, county, or city and county that is designated as the enforcement agency, as defined in Section 113773, may authorize, by ordinance or resolution, within its jurisdiction the permitting of microenterprise home kitchen operations in accordance with this chapter. If a governing body of a city, county, or city and county authorizes the permitting of microenterprise home kitchen operations, the authorization shall apply to all areas within its jurisdiction, including being applicable to all cities within a county that authorizes microenterprise home kitchen operations, regardless of whether each city located within the jurisdiction of the county separately authorizes them.

SEC. 4.

 Section 114367.1 of the Health and Safety Code is amended to read:

114367.1.
 (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 9 (commencing with Section 114265), 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 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.
(2) Any provision in this part relating to sinks, warewashing machines, and manual or machine sanitation, including including,  but not limited to, Sections 114099, 114099.2, 114099.4, 114099.6, 114099.7,  114101.1, 114101.2, 114103, 114107, 114123, 114125, 114163, and 114279, provided that the sink in a microenterprise home kitchen operation has hot and cold water and is fully operable. all of the following conditions are met: 
(A) Utensils and equipment are able to be properly cleaned and sanitized.
(B) The sink in a microenterprise home kitchen operation has hot and cold water and is fully operable.
(C) If a dishwasher is used, it shall be operated in accordance with the manufacturer’s specifications.
(3) Prohibition on the presence of persons unnecessary to the food facility operation in the food preparation, food storage, or warewashing areas, as specified in Section 113945.1. 113945.1, provided that the permitholder takes steps to avoid any potential contamination to food, clean equipment, utensils, and unwrapped single-service and single-use articles and prevents a person suffering from symptoms associated with acute gastrointestinal illness or person known to be infected with a communicable disease that is transmissible through food to enter the food preparation area while food is being prepared as part of a microenterprise home kitchen operation. 
(4) No smoking sign posting requirements, as specified in Section 113978.
(5) Limitations on employee consumption of food, drink, or tobacco outside of designated areas, as specified in Sections 113977 and 114256. 114256, provided that the permitholder takes steps to avoid any potential contamination to food, clean equipment, utensils, and unwrapped single-service and single-use articles and prevents a person suffering from symptoms associated with acute gastrointestinal illness or person known to be infected with a communicable disease that is transmissible through food to enter the food preparation area while food is being prepared as part of a microenterprise home kitchen operation. 
(6) Limitations on consumer access to the food facility through food preparation areas, as specified in Section 113984.1. 113984.1, provided that the permitholder takes steps to avoid any potential contamination to food, clean equipment, utensils, and unwrapped single-service and single-use articles and prevents a person suffering from symptoms associated with acute gastrointestinal illness or person known to be infected with a communicable disease that is transmissible through food to enter the food preparation area while food is being prepared as part of a microenterprise home kitchen operation. 
(7) Display guard, cover, and container requirements, as specified in Section 114060, provided that any food on display that is not protected from the direct line of a consumer’s mouth by an effective means is not served or sold to any subsequent consumer.
(8) Limitations on outdoor display and sale of foods, as specified in Section 114069.
(9) (8)  Requirements to provide clean drinking cups and tableware for second portions and beverage refills, as specified in Section 114075.
(10) (9)  Requirements pertaining to the characteristics and certification of utensils and equipment, as specified in Sections 114130, 114130.1,  114130  and 114139, provided that utensils and equipment are designed to retain their characteristic qualities under normal use conditions.
(11) (10)  Requirements pertaining to the characteristics, construction, and multiuse of food-contact and nonfood-contact surfaces, as specified in Sections 114130.1, 114130.3,  114130.3  and 114130.4, provided that food contact surfaces are smooth, easily cleanable, and in good repair.
(12) (11)  Requirements pertaining to the characteristics, construction, and disassembly of clean in place (CIP) equipment, as specified in Section 114130.5.
(13) (12)  Limitations on the use of wood as a food contact surface and in connection with other equipment, as specified in Section 114132. 114132, provided that hard maple or equivalent wood is approved for use in direct contact with food during preparation. 
(14) (13)  Any provision in this part relating to ventilation, including, but not limited to, Article 2 (commencing with Section 114149) of Chapter 6, provided that gases, odors, steam, heat, grease, vapors, and smoke are able to escape from the kitchen.
(15) (14)  Requirements that cold or hot holding equipment used for potentially hazardous food be equipped with integral or permanently affixed temperature measuring device or product mimicking sensors, as specified in subdivision (c) of Section 114157.
(16) (15)  Requirements pertaining to the installation of fixed, floor-mounted, and table-mounted equipment, as specified in Section 114169.
(17) (16)  Dedicated laundry facility requirements, as specified in Section 114185.5, provided that linens used in connection with the microenterprise home kitchen operation shall be laundered separately from the household and other laundry.
(18) (17)  Requirements pertaining to water, plumbing, drainage, and waste, as specified in Sections 114193, 114193.1, and 114245.7.
(19) (18)  Any requirement that a microenterprise home kitchen operation have more than one toilet facility or that access to the toilet facility not require passage through the food preparation, food storage, or utensil washing areas, including, but not limited to, the requirements specified in Sections 114250 and 114276.
(20) (19)  Light intensity, light source, and lightbulb requirements, as specified in Sections 114252 and 114252.1, provided that food preparation areas are well lighted by natural or artificial light whenever food is being prepared.
(21) (20)  Requirements to provide and use lockers, storage facilities, and designated dressing areas, and that food facility premises be free of litter and items that are unnecessary to the operation, as specified in Sections 114256.1 and 114257.1, provided that personal effects and clothing not ordinarily found in a home kitchen are placed or stored away from food preparation areas and dressing takes place outside of the kitchen.
(22) (21)  Limitations on the presence and handling of animals, such as domestic, service, or patrol animals, as specified in Sections 114259.4 and 114259.5, provided that all animals, other than service animals,  animals  are kept outside of the kitchen and dining areas  during food service and preparation.
(23) (22)  Requirements pertaining to floor, wall, and ceiling surfaces, as specified in Sections 114268, 114269, and 114271, provided that the floor, wall, and ceiling surfaces of the kitchen, storage, and toilet areas are smooth, of durable construction, and easily cleanable with no limitations on the use of wood, tile, and other nonfiber floor surfaces ordinarily used in residential settings.
(24) (23)  Any local evaluation or grading system for food facilities, as authorized by Section 113709.
(25) (24)  All prohibitions and limitations on the use of a kitchen in a private home as a food facility, including, but not limited to, prohibitions and limitations specified in Section 114285, provided that food is not prepared in designated sleeping quarters. Open kitchens adjacent to living and sleeping areas, kitchens in efficiency, studio, and loft-style residences, and kitchens without doors at all points of ingress and egress may be used in microenterprise home kitchen operations.
(26) (25)  Planning and permitting provisions of Sections 114380, 114381,  114380  and 114381.2.
(c) A microenterprise home kitchen operation may operate an open-air barbecue or outdoor wood-burning oven, pursuant to the requirements of Section 114143.
(d) The operator of a microenterprise home kitchen operation shall successfully pass an approved and accredited food safety certification examination, as specified in Section 113947.1.
(e) Any individual, other than the operator, 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.
(f) A microenterprise home kitchen operation shall only offer for sale or sell food that was prepared during a food demonstration or preparation event to a consumer who was present at that food demonstration or preparation event.

SEC. 5.

 Section 114367.2 of the Health and Safety Code is amended to read:

114367.2.
 (a) A microenterprise home kitchen operation shall not be open for business unless it has obtained a permit issued from the local  enforcement agency.
(b) The department shall post on its Internet Web site  internet website  the requirements for the permitting of a microenterprise home kitchen operation, pursuant to this chapter and any ordinance, resolution, or rules adopted by any city or  city,  county, or city and county, that has authorized the permitting of microenterprise home kitchen operations, which shall be written at a high school level.
(c) The applicant shall submit to the local  enforcement agency written standard operating procedures that include all of the following information:
(1) All food types or 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 may  potentially be utilized as a microenterprise home kitchen operation. The stated days and times are not binding on the permitholder and shall be used for information purposes only. 
(d) (1) The local  enforcement agency shall issue a permit after an initial inspection has determined that the proposed microenterprise home kitchen operation and its method of operation comply with the requirements of this chapter.
(2) A local  An  enforcement agency shall not require a microenterprise home kitchen operation to comply with food safety requirements that are different from, or in addition to, the requirements of this chapter.
(e) For purposes of permitting, the permitted area includes the home kitchen, onsite consumer 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.
(f) A local  An  enforcement agency may require a microenterprise home kitchen operation to renew its permit annually.
(g) A permit, once issued, is nontransferable. A permit shall be valid only for the person and location specified by that permit, and, unless suspended or revoked for cause, for the time period indicated.
(h) The permit, or an accurate copy thereof, shall be retained by the operator onsite and displayed at all times the microenterprise home kitchen operation is in operation.
(i) A local  An  enforcement agency may collect a fee for the issuance of a permit pursuant to this chapter in an amount that does not exceed the reasonable administrative costs by the local  enforcement agency in issuing the permit.
(j) Notwithstanding any other law, if there are multiple local agencies involved in the issuance of any type of permit, license, or other authorization to a microenterprise home kitchen operation, the governing body of the city or county, or city and county, shall designate one lead local agency that shall be vested with the sole authority to accept all applications for, to collect all fees for, and to issue, any permit, license, or other authorization required for a microenterprise home kitchen operation to operate in the city or county, or city and county. A local agency other than the lead local agency shall not accept any applications for, collect any fees for, nor issue, any permits for the same purpose.

SEC. 6.

 Section 114367.3 of the Health and Safety Code is repealed.

114367.3.
 (a) Notwithstanding any other law, after the initial inspection for purposes of determining compliance with this chapter, a microenterprise home kitchen operation shall not be subject to routine inspections, except that a representative of a local enforcement agency may access, for inspection purposes, the permitted area of a microenterprise home kitchen operation after the occurrence of either of the following:
(1) The representative has provided the microenterprise home kitchen operation with reasonable advance notice.
(2) The representative has a valid reason, such as a consumer complaint, to suspect that adulterated or otherwise unsafe food has been produced or served by the microenterprise home kitchen operation, or that the microenterprise home kitchen operation has otherwise been in violation of this part.
(b) Notwithstanding any other law, a microenterprise home kitchen operation shall not be subject to more than one inspection each year by the local enforcement agency, except in cases in which the local enforcement agency has valid reason, such as a consumer complaint, to suspect that adulterated or otherwise unsafe food has been produced or served by the microenterprise home kitchen operation, or that the microenterprise home kitchen operation has otherwise been in violation of this part.
(c) The local enforcement agency shall document the reason for the inspection, keep that documentation on file with the microenterprise home kitchen operation’s permit, and provide the reason in writing to the operator of the microenterprise home kitchen operation.
(d) Access provided under this section is limited to the permitted area of the microenterprise home kitchen operation, during the posted operating hours of the microenterprise home kitchen operation, and solely for the purpose of enforcing or administering this part.
(e) A local enforcement agency may seek recovery from a microenterprise home kitchen operation of an amount that does not exceed the local enforcement agency’s reasonable costs of inspecting the microenterprise home kitchen operation for compliance with this part if the microenterprise home kitchen operation is found to be in violation of this part.

SEC. 7.

 Section 114367.3 is added to the Health and Safety Code, to read:

114367.3.
 (a) Notwithstanding any other law, a microenterprise home kitchen operation shall only be subject to the three following types of inspections by the enforcement agency:
(1) A routine inspection for the purpose of allowing the enforcement agency to observe the permitholder engage in the usual activities of a microenterprise home kitchen operation, including, but not limited to, active food preparation. The enforcement agency shall provide notice to a permitholder before a routine inspection and shall conduct the routine inspection at a mutually agreeable date and time. A microenterprise home kitchen operation shall not be subject to more than one routine inspection within 12 months. This paragraph shall not be deemed to require the enforcement agency to conduct a routine inspection.
(2) An investigation inspection for the purpose of allowing the enforcement agency to perform an inspection when the enforcement agency has just cause that adulterated or otherwise unsafe food has been produced or served by the microenterprise home kitchen operation or that the permitholder has otherwise violated this part. One or more consumer complaints may constitute just cause for an investigation inspection. The enforcement agency shall provide notice to a permitholder before an investigation inspection and shall conduct the investigation inspection at a mutually agreeable date and time.
(3) An emergency inspection for the purpose of allowing the enforcement agency to perform a limited inspection when the enforcement agency has just cause that the microenterprise home kitchen operation poses a serious hazard or immediate threat to public health. To the extent that notice of an emergency inspection is reasonable under the circumstances, the enforcement agency shall provide notice to a permitholder before an emergency inspection. The scope of emergency inspection shall be limited in duration and scope to address the facts giving just cause that the microenterprise home kitchen operation poses a serious hazard or immediate threat to public health.
(b) The enforcement agency shall only inspect the permitted area of the microenterprise home kitchen operation for the purpose of enforcing or administering this part.
(c) The enforcement agency may seek recovery from a microenterprise home kitchen operation of an amount that does not exceed the enforcement agency’s reasonable costs of inspecting the microenterprise home kitchen operation for compliance with this part if the microenterprise home kitchen operation is found to be in violation of this part.

SEC. 8.

 Section 114367.5 of the Health and Safety Code is amended to read:

114367.5.
 (a) A person delivering food on behalf of a microenterprise home kitchen operation with a permit issued pursuant to Section 114367.2 shall be an employee of the microenterprise home kitchen  operation or a family member or household member of the permitholder, and, if the person drives a motor vehicle in the delivery of the food, the person shall have a valid driver’s license. permitholder. 
(b) The (1)  Except as provided in paragraph (2), food produced in a  microenterprise home kitchen operation shall keep on file a copy of the valid driver’s license of a person delivering food on behalf of the operation. not be delivered by a third-party delivery service. 
(2) (A) Food produced in a microenterprise home kitchen operation may be delivered by a third-party delivery service to an individual who has a physical or mental condition that is a disability which limits the individual’s ability to access the food without the assistance of a third-party delivery service.
(B) A microenterprise home kitchen operation or an internet food service intermediary that offers or facilitates food delivery pursuant to subparagraph (A) shall do all of the following:
(i) Record and maintain a record of the number and dates of food deliveries made pursuant to subparagraph (A). A microenterprise home kitchen operation shall make the record available to an enforcement agency pursuant to any inspection authorized pursuant to Section 114367.3. An internet food service intermediary shall make the record available to an enforcement agency upon request.
(ii) Clearly and conspicuously post on its internet website or mobile application alongside any mention of third-party delivery options a notice that a third-party delivery service is prohibited from delivering food except to an individual who has a physical or mental condition that is a disability which limits the individual’s ability to access the food without the assistance of a third-party delivery service.
(C) Food delivery by a third-party delivery service pursuant to subparagraph (A) does not apply to dine-in meals sold for consumption on the premises of a microenterprise home kitchen or to cooking classes or demonstrations.

SEC. 9.

 Section 114367.6 of the Health and Safety Code is amended to read:

114367.6.
 (a) An Internet internet  food service intermediary that lists or promotes a microenterprise home kitchen operation on its Internet Web site  internet website  or mobile application shall meet all of the following requirements:
(1) Be registered with the department. A registration, once issued, is nontransferable. A registration shall be valid only for the person and type of business specified by that registration, and unless suspended or revoked for cause by the department. 
(2) Prior to the listing or publication of a microenterprise home kitchen operation’s offer of food for sale, clearly and conspicuously post on its Internet Web site  internet website  or mobile application the requirements for the permitting of a microenterprise home kitchen specified in this chapter, which shall be written at the high school level and be provided by the department.
(3) Clearly and conspicuously post on its Internet Web site  internet website  or mobile application the fees associated with using its platform and fees associated with third-party delivery service pursuant to paragraph (2) of subdivision (b) of Section 114367.5  in a manner that allows both the consumer and the microenterprise home kitchen operation to see and understand the amount being charged for the services provided by the Internet internet  food service intermediary. The Internet internet  food service intermediary shall notify the  microenterprise home kitchen operations operation  of any changes to these fees exceeding a 2-percent increase in writing and no later than one month before the changes take effect.
(4) Clearly and conspicuously post on its Internet Web site  internet website  or mobile application whether or not it has liability insurance that would cover any incidence arising from the sale or consumption of food listed or promoted on its Internet Web site  internet website  or mobile application.
(5) Provide a dedicated field on its platform for a microenterprise home kitchen operation to post the permit number, and shall provide notice to the microenterprise home kitchen operation of the requirement that the permit number be updated annually. number and the name of the enforcement agency that issued the permit. 
(6) Clearly and conspicuously post on its Internet Web site  internet website  or mobile application how a consumer can contact the Internet internet  food service intermediary through its Internet Web site  internet website  or mobile application if the consumer has a food safety or hygiene complaint and a link to the department’s Internet Web site  internet website  that contains information for how to file a complaint with the local  enforcement agency.
(7) Submit the name and permit number of a microenterprise home kitchen operation to the local enforcement agency if it  enforcement agency that issued the permit to the microenterprise home kitchen operation if the internet food service intermediary  receives, through its Internet Web site  internet website  or mobile application, three or more unrelated individual food safety or hygiene complaints in a calendar year from consumers that have made a purchase through its Internet Web site  internet website  or mobile application. The Internet internet  food service intermediary shall submit this information to the local  enforcement agency within two weeks of the third complaint received.
(8) If it is notified by the local  enforcement agency of significant food safety related complaints from a verified consumer that has made a purchase through its Internet Web site  internet website  or mobile application, submit to the local  enforcement agency the name and permit number of the  microenterprise home kitchen operation where the food was purchased, and a list of consumers who purchased food on the same day from that microenterprise home kitchen operation through its Internet Web site  internet website  or mobile application.
(9) Prior to the listing or publication of a microenterprise home kitchen operation’s offer of food for sale, obtain consent from the microenterprise home kitchen operation to make the disclosures to government entities required pursuant to this section.
(10) Shall not permit the use of the word “catering” or any variation of that word in a listing or publication of a microenterprise home kitchen operation’s offer of food for sale.
(11) Shall not use, or knowingly facilitate the use of, a third-party delivery service for food produced by the microenterprise home kitchen operation, except as authorized pursuant to paragraph (2) of subdivision (b) of Section 114367.5.
(b) For purposes of this chapter, an “Internet “internet  food service intermediary” means an entity that provides a platform on its Internet Web site  internet website  or mobile application through which a microenterprise home kitchen operation may choose to offer food for sale and from which the Internet internet  food service intermediary derives revenues, including, but not limited to, revenues from advertising and fees for services offered to a microenterprise home kitchen operation. Services offered by an Internet internet  food service intermediary to a microenterprise home kitchen operation may include, but are not limited to, allowing a microenterprise home kitchen operation to advertise its food for sale and providing a means for potential consumers to arrange payment for the food, whether the consumer pays directly to the microenterprise home kitchen operation or to the Internet internet  food service intermediary. Merely publishing an advertisement for the microenterprise home kitchen operation or food cooked therein does not make the publisher an Internet internet  food service intermediary.
(c) (1) A microenterprise home kitchen operation that advertises to the public, including, but not limited to, advertising by website, internet, social media platform, newspaper, newsletter, or other public announcement, shall include all of the following within the advertisement:
(A) Name of the enforcement agency that issued the permit.
(B) Permit number.
(C) Statement that the food prepared is “Made in a Home Kitchen” in a clear and conspicuous font and location within a written advertisement and an audible and comprehensible manner in a verbal advertisement.
(2) A microenterprise home kitchen operation shall not use the word “catering” or any variation of that word in an advertisement relating to the microenterprise home kitchen operation’s offer of food for sale.
SEC. 10.
 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. 11.
 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
To ensure a uniform implementation of the health and food safety responsibilities of microenterprise home kitchen operations throughout the state, it is necessary that this act take effect immediately.