Bill Text: CA AB377 | 2019-2020 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Microenterprise home kitchen operations.

Spectrum: Bipartisan Bill

Status: (Passed) 2019-10-07 - Chaptered by Secretary of State - Chapter 536, Statutes of 2019. [AB377 Detail]

Download: California-2019-AB377-Amended.html

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Amended  IN  Assembly  March 11, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill

No. 377

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Introduced by Assembly Member Eduardo Garcia

February 05, 2019

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An act to amend Sections 114367.1, 114367.2, 114367.3, 114367.5, and 114367.6 of, to add Section 114367.7 to, and to repeal and add Section 114367 of, the Health and Safety Code, relating to retail food facilities, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL'S DIGEST

AB 377, as amended, Eduardo Garcia. Microenterprise home kitchen operations.

(1) The California Retail Food Code (code) authorizes the governing body of a city, county, or city and county, by ordinance or resolution, to permit microenterprise home kitchen operations if certain conditions are met. The code requires microenterprise home kitchen operations, as a restricted food service facility, to meet specified food safety standards. A violation of the code is generally a misdemeanor.

This bill would modify the conditions for a city, county, or city and county to permit microenterprise home kitchen operations within its jurisdiction. The bill would require an enforcement agency that is permitting and inspecting microenterprise home kitchen operations to annually report specified information about the operations within its jurisdiction and post a link to a report on the homepage of its internet website. The bill would modify the inspections and food safety standards applicable to microenterprise home kitchen operations. The bill would prohibit an internet food service intermediary or a microenterprise home kitchen operation from using the word “catering” or any variation of that word in a listing or advertisement of a microenterprise home kitchen operation’s offer of food for sale. The bill would require a microenterprise home kitchen operation to include specific information, including its permit number, in its advertising. The bill would prohibit a third-party delivery service from delivering food produced by a microenterprise home kitchen operation. By expanding the scope of a crime for a violation of the code, this bill would impose a state-mandated local program.

(2) 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.

(3) This bill would declare that it is to take effect immediately as an urgency statute.

Digest Key

Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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Bill Text

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

SECTION 1.

 Section 114367 of the Health and Safety Code is repealed.

SEC. 2.

 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, shall have full discretion to 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. 3.

 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, 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, 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 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, except during hours of a microenterprise home kitchen operation. provided that the permit holder 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, except during times when food is being prepared as part of a microenterprise home kitchen operation. provided that the permit holder 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, except during hours of a microenterprise home kitchen operation. provided that the permit holder 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. 114069, provided that food is protected to prevent contamination and that any potentially hazardous food that is displayed or sold outdoors is maintained at the required temperatures. Food items from the outdoor display shall be stored inside the kitchen when not operating the microenterprise home kitchen operation.

(9) Requirements to provide clean drinking cups and tableware for second portions and beverage refills, as specified in Section 114075.

(10) 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) 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) Requirements pertaining to the characteristics, construction, and disassembly of clean in place (CIP) equipment, as specified in Section 114130.5.

(13) Limitations on the use of wood as a food contact surface and in connection with other equipment, as specified in Section 114132.

(14) 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) 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) Requirements pertaining to the installation of fixed, floor-mounted, and table-mounted equipment, as specified in Section 114169.

(17) 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) Requirements pertaining to water, plumbing, drainage, and waste, as specified in Sections 114193, 114193.1, and 114245.7.

(19) 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) 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) 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) 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) 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) Any local evaluation or grading system for food facilities, as authorized by Section 113709.

(25) 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) 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.

SEC. 4.

 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 enforcement agency.

(b) The department shall post on its 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, 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 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 potentially be utilized as a microenterprise home kitchen operation.

(d) (1) The 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 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 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) 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 enforcement agency in issuing the permit.

SEC. 5.

 Section 114367.3 of the Health and Safety Code is amended to read:

114367.3.

 (a) Notwithstanding any other law, a microenterprise home kitchen operation shall not be subject to more than one prescheduled, routine inspection each year by the enforcement agency, except in cases in which the 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.

(b) (1)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, operation during the time when the microenterprise home kitchen operation is operating under the permit and not as a private home, and solely for the purpose of enforcing or administering this part. Access may be allowed outside of the time when the microenterprise home kitchen operation is operating under the permit if the permit holder reaches an agreement with the enforcement agency on a mutually acceptable time for the inspection to occur.

(2)Notwithstanding paragraph (1), a local enforcement agency may inspect a microenterprise home kitchen operation outside its posted operating hours under the following conditions:

(A)The enforcement agency determines an urgent public health and safety issue requires inspection outside the posted operating hours.

(B)The microenterprise home kitchen operation is not open during the regular business hours of the enforcement agency.

(c) A An 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. 6.

 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. permit holder.

(b) Food produced in a microenterprise home kitchen operation shall not be delivered by a third-party delivery service.

SEC. 7.

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

114367.6.

 (a) An internet food service intermediary that lists or promotes a microenterprise home kitchen operation on its internet website or mobile application shall meet all of the following requirements:

(1) Be registered with 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 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 website or mobile application the fees associated with using its platform 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 food service intermediary. The internet food service intermediary shall notify microenterprise home kitchen operations 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 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 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.

(6) Clearly and conspicuously post on its internet website or mobile application how a consumer can contact the internet food service intermediary through its internet website or mobile application if the consumer has a food safety or hygiene complaint and a link to the department’s internet website that contains information for how to file a complaint with the enforcement agency.

(7) Submit the name and permit number of a microenterprise home kitchen operation to the enforcement agency if it receives, through its 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 website or mobile application. The internet food service intermediary shall submit this information to the enforcement agency within two weeks of the third complaint received.

(8) If it is notified by the enforcement agency of significant food safety related complaints from a verified consumer that has made a purchase through its internet website or mobile application, submit to the enforcement agency the name and permit number of 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 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.

(b) For purposes of this chapter, an “internet food service intermediary” means an entity that provides a platform on its internet website or mobile application through which a microenterprise home kitchen operation may choose to offer food for sale and from which the 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 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 food service intermediary. Merely publishing an advertisement for the microenterprise home kitchen operation or food cooked therein does not make the publisher an 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.

(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. 8.

 Section 114367.7 is added to the Health and Safety Code, to read:

114367.7.

 (a) (1) On or before January 1, 2021, and annually thereafter, 2022, an enforcement agency permitting and inspecting microenterprise home kitchen operations in accordance with this chapter shall report to the Legislature all of the following relating to microenterprise home kitchen operations within its jurisdiction:

(A) Number of permits issued.

(B) Foods authorized to be prepared.

(C) Number and nature of violations of this chapter.

(2) Each The report shall be submitted in compliance with Section 9795 of the Government Code.

(b) Within seven business days of submitting a the report pursuant to subdivision (a), an enforcement agency shall post a conspicuous link on the homepage of its internet website to an electronic copy of the report.

SEC. 9.

 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. 10.

 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.