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HomeMy WebLinkAboutAB 377 - Microenterprise Home Kitchen OperationsSTAFF REPORT CITY OF PALM DESERT CITY MANAGER'S OFFICE MEETING DATE: June 27, 2019 PREPARED BY: Christopher Gerry, Management Analyst REQUEST: Submission of a letter of opposition for Assembly Bill 377 regarding microenterprise home kitchen operations. Recommendation By minute motion, approve the submission of a letter of opposition to the appropriate legislators for Assembly Bill 377 regarding microenterprise home kitchen operations. Backaround Analvsis In the 2017-18 Regular Session, the California Legislature approved Assembly Bill 626 (Garcia), which revised the Health and Safety Code to allow for microenterprise home kitchen operations (MHKOs). Once enacted, the law allows for home -based restaurants by allowing residents to prepare, delivery, and/or serve up to 60 meals per week with an annual sales cap of $50,000. Notwithstanding, the law needed clarification regarding two subdivisions that allowed a governing body to "opt -in" to having MHKOs (via ordinance or resolution). As displayed below, it is unclear if cities or counties are responsible for opting in to having MHKOs. As a result, no counties or cities have opted in to having MHKOs, until the County of Riverside opted in via Ordinance 949 (Attachment A) effective June 5, 2019. Furthermore, an information sheet outlining MHKOs from the County of Riverside, Department of Environmental Health, can be found as Attachment B. Health and Safetv Code (Section 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. In the 2019-20 Regular Session, the California Legislature is reviewing AB 377 (Garcia, Mayes). This bill does provide health -related cleanup language relating to MHKOs, but also removes local control by generally only allowing counties to opt -in to having MHKOs. Please note that once a county opts in, MHKOs may operate according to the law within all cities under the county limits. Maintaining some degree of local control of MHKOs is crucial since they impact land use by converting homes into restaurants. June 27, 2019 Assembly Bill 377 Page 2of2 As a result, the Legislative Review Committee recently reviewed and subsequently recommended opposing AB 377. A letter of opposition for Council consideration can be found as Attachment D. If approved, the attached letter will be submitted to the appropriate legislators contingent upon the status of the bill. LEGAL REVIEW N/A Robert W. Hargreaves City Attorney ATTACHMENTS: DEPT. REVIEW N/A Lauri Aylaian City Manager FINANCIAL REVIEW i et Moore Director of Finance A. County of Riverside — Ordinance 949 B. County of Riverside — MHKO Information Sheet C. Assembly Bill 377 D. Letter of Opposition CITY MANAGER Lauri Aylaian City Manager Attachment A County of Riverside — Ordinance 949 ORDINANCE NO.949 AN ORDINANCE OF THE COUNTY OF RIVERSIDE REGULATING MICROENTERPRISE HOME KITCHEN OPERATIONS AND INCORPORATING BY REFERENCE HEALTH AND SAFETY CODE SECTIONS 113789, 113825, 114367, 114367.1 — 114367.6 AND 114390 The Board of Supervisors of the County of Riverside ordains as follows: Section 1. PURPOSE AND INTENT. The purpose and intent of this Ordinance is to allow for small-scale, direct food sales from home based food facilities to prioritize locally prepared foods to consumers. This entry into the food economy will help provide access to guidelines, training and safety resources. Section 2. AUTHORITY. Assembly Bill 626 was passed on September 18, 2018, adding to and amending sections of the California Health and Safety Code, relating to food safety. This ordinance is adopted in accordance with Assembly Bill 626 and pursuant to the Board of Supervisors' police powers as set forth under Article XI, section 7 of the California Constitution. This Ordinance shall be administered and implemented by the Riverside County Department of Environmental Health. Section 3. DEFINITIONS. The definitions set forth in Health and Safety Code section 113789 are incorporated by reference in this ordinance. The following terms are consistent with California Health and Safety Code Section 113825 and shall have the following meanings: A. Department. Riverside County Department of Environmental Health. B. Enforcement Officer. The Director of Environmental Health and his or her duly authorized designees. C. Microenterprise Home Kitchen Operation Operator. The resident of the private home who holds the permit for the MHKO and is responsible for the operation. D. Microenterprise Home Kitchen Operation (MHKO). As defined by section 113825 of the California Health and Safety Code, is a food facility with gross annual sales limits set forth in subdivision (a) subsection (7) of section 113825 operated by a MKHO Operator and having not more than one full-time equivalent food employee, not including a family member or household member of the MHKO Operator, and conducted within the Permitted Area of a private home where the MHKO Operator resides and where Microenterprise Home Kitchen foods are prepared or packaged for direct sales or delivery to consumers pursuant to section 113825 subdivision (a) subsection (3) of the Health and Safety Code. E. Permitted Area. A private home kitchen described and authorized in the permit for the MHKO, on -site consumer eating area, toilet room, janitorial or cleaning facilities, refuse storage area, and attached rooms within the home that are used exclusively for food, utensil and equipment storage. Detached accessory buildings, including garages and sleeping quarters, enclosed patios or second units are not included as a Permitted Area. F. Resident of a Private Home. An individual who resides in the private home when not elsewhere for labor or other special or temporary purposes. Ord. 949 — Page 1 of 8 Section 4. INSPECTIONS. The Department shall inspect MHKO upon the initial application, as well as on an annual basis, or due to a consumer complaint, if there is reason to suspect that unsafe food has been produced, or there is another violation of this Ordinance. An inspection form provided by the Department shall be used for all inspections. An inspection will be conducted after advanced notice is given to the Resident of a Private Home and will include Permitted Areas and vehicles used for transporting food to or from a MHKO. The Department may seek cost recovery, based on the hourly rate established in the current version of Ordinance 640 if additional inspections or complaint investigations are required to ensure compliance with this Ordinance. Section 5. OPERATING REQUIREMENTS. Consistent with the operational requirements set forth in California Health and Safety Code Section 114367, et seq., a MHKO shall comply with the following: A. No MHKO food preparation, packaging, or handling may occur concurrent with any other domestic activities, including, but not limited to, family meal preparation, guest entertaining, or dishwashing. B. Other than service animals, as defined in section 35.104 of Title 28 of the Code of Federal Regulation, all animals shall be excluded from the kitchen and dining areas during food service and preparation. C. Equipment and utensils used to produce MHKO food shall be smooth, easily cleanable, and maintained in a good state of repair. D. All food contact surfaces, equipment, and utensils used for the preparation, packaging, or handling of any MHKO food shall be washed, rinsed, and sanitized before each use. E. All MHKO food must be stored, prepared, packaged, transported and kept for sale, and served to be pure and free from adulteration and spoilage and shall be maintained protected from contamination. F. All MHKO potentially hazardous food must be stored and transported with proper internal food temperatures. G. All Permitted Areas and vehicles used to transport shall be maintained clean, sanitary, in a good state of repair, and free of rodents and insects. H. No preparation, packaging, storage, or handling of MHKO food and related ingredients and/or equipment shall occur outside of the Permitted Area. I. A person with a contagious illness shall not work in the MHKO. J. A person involved in the preparation or packaging of MHKO food shall keep his or her hands and exposed portions of his or her arms clean and shall properly wash his or her hands before any food preparation or packaging activity. K. Water used during the preparation of MHKO food products shall meet potable drinking water standards. L. The private sewage disposal system must be adequate for the additional liquid waste. M. The MHKO Operator shall successfully pass an approved and accredited food safety manager certification examination. Ord. 949 — Page 2 of 8 N. Any person(s) involved with the MHKO shall obtain a Riverside County Food Handler Certification within one (1) week as per Riverside County Ordinance 567. O. The MHKO Operator shall submit and maintain standard operating procedures with a complete menu, and operational days/hours. P. Only one (1) MHKO may operate per site. Q. No signage or other outdoor displays advertising the MHKO are allowed. R. All MHKO food shall be prepared, cooked, and served on the same day. S. MHKO food shall be consumed onsite at the MHKO, offsite if the food is picked up by the consumer or delivered to the consumer. The sale of MHKO food through an internet food service intermediary is a direct sale. The MHKO cannot provide food to any wholesaler or retailer for resale and is not a Cottage Food Operation as defined in section 113758 of the California Health and Safety Code nor a catering operation as defined in section 113739.1 subdivision (a) of the California Health and Safety Code. T. A person who delivers food on behalf of a MHKO shall be an employee, or family member or household member of the MHKO Operator. U. Only California Department of Public Health approved internet food service intermediaries may be used. V. MHKO may not engage in food processes that would require a HACCP plan as specified in section 114419 of the California Health and Safety Code, or produce, serve, or sell raw milk or raw milk products as defined in section 11380 of Title 17 of the California Code of Regulations, or serve raw oysters. W. 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 per week, or the approximate equivalent of meal components when sold separately. The Department may decrease the number of individual meals prepared based on the food preparation capacity of the MHKO, but shall not, in any case, increase the limit of the number of individual meals prepared. X. The MHKO 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. Y. For MHKO with cooking equipment, a properly charged and maintained minimum 10 BC -rated fire extinguisher to combat grease fires shall be readily accessible and a first aid kit shall be provided and located in a convenient, accessible area. Section 6. PERMIT. No person shall conduct a MHKO without holding a valid permit issued by the Department. Application for a permit shall be made upon a form issued by the Department and shall be accompanied by a fee as listed below: Permit for MHKO $651.00 The fee listed in this section shall be valid until such time as Ordinance 640 is revised to incorporate this new fee therein. Prior to incorporating this new fee into Ordinance 640, a time/cost accounting study will be completed to ensure that the proposed fee is adequate and fair or adjusted accordingly. Once Ordinance 640 has been updated, the fee listed in this Section shall be void and the fee in Ordinance 640 shall be the valid fee. Any annual permit shall be valid for no more than one year from the month of issue. The application Ord. 949 — Page 3 of 8 shall not be deemed as completed unless accompanied with documentation indicating that all applicable planning requirements have been met. A permit is not transferrable. The owner of the property, if different from the MHKO Operator, must provide written consent for the MHKO, prior to the issuance of a permit from this Department. Section 7. ENFORCEMENT. Notwithstanding the remedies set forth in California Health and Safety Code Sections 114390, 114405, and 114409, the Department reserves the right to issue administrative citations in accordance with Government Code section 53069.4. An administrative citation may be issued for any violation of this Ordinance. The following procedures shall govern the imposition, enforcement, collection and administrative review of administrative citations and penalties. A. Notice of Violation. If the violation is not corrected within the period stated in the notice of violation, or if the violation creates an immediate danger to health or safety, an administrative citation may be issued by the Enforcement Officer. The notice of violation shall specify the manner in which the conditions of the MHKO violate the provisions of this Ordinance and the corrective actions required to correct the condition or conduct. The notice shall also state that failure to come into compliance with this Ordinance could subject the registrant or permittee of the MHKO to administrative and criminal penalties. The failure of the notice to set forth all required contents shall not affect the validity of the proceedings. B. Content of Citation. The administrative citation shall be issued on a form approved by County Counsel and shall contain the information listed below. The failure of the citation to set forth all required contents shall not affect the validity of the proceedings. 1. Date, location and approximate time the violation was observed. 2. The Ordinance section violated and a brief description of the violation. 3. The amount of the administrative penalty imposed for the violation. 4. Instructions for the payment of the penalty, the time period by which it shall be paid, and the consequences of failure to pay the penalty within this time period. 5. Instructions on how to appeal the citation. 6. The signature of the Enforcement Officer. C. Service of Citation. 1. If the registrant, permittee or other person who has violated the Ordinance is present at the scene of the violation, the Enforcement Officer shall attempt to obtain their signature on the administrative citation and shall deliver a copy of the administrative citation to them. 2. If the registrant, permittee or other person who has violated the Ordinance cannot be located at the property, then the administrative citation shall be posted in a conspicuous place on or near the property and a copy mailed by certified mail, return receipt requested to the registrant or permittee who has violated the Ordinance. The citation shall be mailed to the property address and/or the address listed for the owner on the last County Equalized Assessment Roll. 3. The failure of any interested person to receive the citation shall not affect the validity of the proceedings. Ord. 949 — Page 4 of 8 I E. Administrative Penalties. 1. The penalties assessed for each violation shall not exceed the following amounts: a. $100.00 for a first violation; b. $200.00 for a second violation of the same Ordinance within one year; and C. $500.00 for each additional violation of the same Ordinance within one year. 2. If the violation is not corrected, additional administrative citations may be issued for the same violation. The amount of the penalty shall increase at the rate specified above. 3. Payment of the penalty shall not excuse the failure to correct the violation nor shall it bar further enforcement action. 4. The penalties assessed shall be payable to the County of Riverside. Administrative Appeal. 1. Notice of Appeal. The recipient of an administrative citation may appeal the citation by filing a written notice of appeal with the Department. The written notice of appeal must be filed within twenty (20) days of the service of the administrative citation. Failure to file a written notice of appeal within this time period shall constitute a waiver of the right to appeal the administrative citation. The notice of appeal shall contain the following information: a. A brief statement setting forth the appellant's interest in the proceedings; b. A brief statement of the material facts which the appellant claims supports his/her contention that no administrative penalty should be imposed or that an administrative penalty of a different amount is warranted; C. An address at which the appellant agrees notice of any additional proceeding or an order relating to the imposition of the administrative penalty may be received by mail. d. The notice of appeal must be signed by the appellant. 2. Administrative Hearing. Upon a timely written request by the recipient of the administrative citation, an administrative hearing shall be held as follows: a. Notice of Hearing. Notice of the administrative hearing shall be given at least ten (10) days before the hearing to the person requesting the hearing. The notice may be delivered to the person or may be mailed to the address listed in the notice of appeal. b. Hearing Officer. The administrative hearing shall be held before the Board of Supervisors, the County Hearing Officer or the County Hearing Board. The hearing officer shall not be the Enforcement Officer who issued the administrative citation or their immediate supervisor or subordinate. The Board of Supervisors, the County Hearing Officer or the County Hearing Board may contract with a qualified provider to conduct administrative hearings or to process administrative citations. Ord. 949 — Page 5 of 8 C. Conduct of the Hearing. Except as may be required by the hearing officer, the Enforcement Officer who issued the administrative citation is not required to participate in the administrative hearing. The contents of the Enforcement Officer's file in the case shall be admitted as prima facie evidence of the facts stated therein. The hearing officer shall not be limited by the technical rules of evidence. If the person requesting the appeal fails to appear at the administrative hearing, the hearing officer shall make his or her determination based on the information contained in the notice of appeal. d. Hearing Officer's Decision. The hearing officer's decision following the administrative hearing shall be delivered to the person requesting the hearing personally or sent by mail. The hearing officer may allow payment of the administrative penalty in installments, if the person provides evidence satisfactory to the hearing officer of an inability to pay the penalty in full. The hearing officer's decision shall contain instructions for obtaining review of the decision by the superior court. F. Review of Administrative Hearing Officer's Decision. 1. Notice of Appeal. Within twenty (20) days of the date of the delivery or mailing of the hearing officer's decision, a person may contest that decision by filing an appeal to be heard by the superior court. The fee for filing the notice of appeal is twenty-five dollars ($25.00). The failure to file the written appeal and to pay the filing fee within this period shall constitute a waiver of the right to an appeal and the decision shall be deemed confirmed. A copy of the notice of appeal shall be served in person or by first class mail upon the issuing agency by the contestant. 2. Conduct of Hearing. The conduct of the appeal is a subordinate judicial duty and may be performed by traffic trial commissioners and other subordinate judicial officials at the direction of the presiding judge of the court. The appeal shall be heard de novo, except that the contents of the issuing agency's file in the case shall be received in evidence. A copy of the document or Instrument of the issuing agency providing notice of the violation and imposition of the administrative penalty shall be admitted into evidence as prima facie evidence of the facts stated therein. The court shall request that the issuing agency's file on the case be forwarded to the court, to be received within fifteen (15) days of the request. 3. Judgment. The court shall retain the twenty-five dollar ($25.00) fee regardless of the outcome of the appeal. If the court finds in favor of the contestant, the amount of the fee shall be reimbursed to the contestant by the Department. Any deposit of the fine or penalty shall be refunded by the issuing agency in accordance with the judgment of the court. If the fine or penalty has not been deposited and the decision of the court is against the contestant, the issuing agency may proceed to collect the penalty pursuant to any manner provided by law. Ord. 949 — Page 6 of 8 Section 8. CRIMINAL PENALTIES. A. Any person violating any provision of this ordinance shall be guilty of an infraction or misdemeanor as hereinafter specified. Such individual shall be deemed guilty of a separate offense for each day during which any violation of this ordinance is committed or allowed to exist. B. Any individual convicted of a violation of this ordinance shall be: 1. Guilty of an infraction and punished by a fine of not less than fifty dollars ($50.00), but not exceeding one hundred dollars ($100.00) for the first offense. 2. Guilty of an infraction and punished by a fine of not less than one hundred dollars ($100.00), but not exceeding two hundred dollars ($200.00) for the second offense. 3. The third and subsequent offenses shall constitute misdemeanor and shall be punishable by a fine of not less than five hundred dollars ($500.00) but not to exceed one thousand dollars ($1,000.00), imprisonment of up to six months in the county jail, or both. 4. Notwithstanding subsections A. and B. above, the first or second offense may be charged and prosecuted as misdemeanor. C. Payment of any penalty herein shall not relieve any individual from the responsibility of correcting the violations as found by the enforcement officer. D. Any person found not in compliance with state law and/or this ordinance is subject to citation, permit suspension/revocation, lien, or other legal action as deemed necessary by the Department. Section 9. NUISANCE DEFINED. Any MHKO, whether permitted or not pursuant to the procedures of this Ordinance, found in violation of this Ordinance is hereby declared to be a public nuisance and dangerous to the health and safety of Riverside County. Section 10. CIVIL ACTIONS. A. Injunctive Relief and Abatement. Whenever, in the judgment of the Enforcement Officer, any person is engaged in or about to engage in any act or practice which constitutes or will constitute a violation of any provision of this Ordinance, or any rule, regulation, order, permit or conditions of approval issued thereunder, upon the request of the Enforcement Officer, the County Counsel or District Attorney may commence proceedings for the abatement, removal, correction and enjoinment thereof, and require the violator to pay civil penalties and/or abatement costs. B. Civil Remedies and Penalties. Any person, whether acting as principal, agent, employee, Owner, lessor, lessee, tenant, occupant, operator, contractor or otherwise, who willfully violates the provisions of this Ordinance or any rule, regulation, order or conditions of approval issued thereunder, shall be liable for a civil penalty not to exceed $1,000.00 for each day or portion thereof, that the violation continues to exist. In determining the amount of the civil penalty to impose, the court shall consider all relevant circumstances, including, but not limited to, the extent of the harm caused by the conduct constituting a violation, the nature and persistence of such conduct, the length of time over which the conduct occurred, the assets, liabilities, and net worth of the violator, whether corporate or individual, and any corrective action taken by the violator. Ord. 949 — Page 7 of 8 Section 11. COSTS AND DAMAGES. Any person, whether acting as a principal, agent, employee, Owner, lessor, lessee, tenant, occupant, operator or contractor, or otherwise, violating any provisions of this Ordinance or the rules, regulations, orders, permits or conditions of approval issued thereunder, shall be liable to the County of Riverside for costs of abatement and any damages suffered by the County, its agents and agencies, as a result of such violations. Section 12. RECOVERY OF ATTORNEYS' FEES IN NUISANCE ABATEMENT CASES. In any action, administrative proceeding, or special proceeding to abate a nuisance, attorneys' fees may be recovered by the prevailing party. In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the County in the action or proceeding. Section 13. REMEDIES AND PENALTIES. All remedies and penalties provided for herein shall be cumulative and not exclusive. The conviction and punishment of any person hereunder shall not relieve such person from the responsibility of correcting, removing or abating the violation, nor prevent the enforced correction, removal or abatement thereof. Each and every day during any portion of which any violation of this Ordinance or the rules, regulations, orders, Permits or conditions of approval issued thereunder is committed, continued, or permitted by such person, shall be deemed a separate and distinct offense. Section 14. RIGHT OF INSPECTION. Pursuant to the Health and Safety Code, the Department shall have the right to enter, inspect, issue citations to, and secure any sample, photographs, or other evidence from any MHKO, or any facility suspected of being a MHKO, or a vehicle transporting food to or from a MHKO, at any reasonable time. Unless the Department fails to provide proper identification, refusing an inspection may result in the permit being suspended or revoked, and/or the owner or operator shall be guilty of an infraction or misdemeanor offense. Section 15. SEVERABILITY. If any provision, clause, sentence or paragraph of this Ordinance or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions or applications of the provisions of this Ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this Ordinance are hereby declared to be severable. Section 16. EFFECTIVE DATE. This ordinance shall take effect thirty (30) days after its adoption. Adopted: 949 Item 19.2 of 05/07/2019 (Eff: 06/05/2019) Ord. 949 — Page 8 of 8 Attachment B County of Riverside — Information Sheet A MHKO IS A NEW TYPE OF FOOD FACILITY, LIKE A MINI RESTAURANT, OPERATED IN A PRIVATE HOME ese' A MAXIMUM OF 30 MEALS PER DAY AND ONLY 1 MHKO IS PERMITTED PER SITE. THE 60 MEALS PER WEEK CAN BE SERVED* WITH _ 13 AN ANNUAL SALES CAP OF $50,000 �© OPERATOR MUST BE THE RESIDENT OF THE PRIVATE #ENVIRONMENFAL HEALTH MAY DECREASE MEAL LIMITS BASED * HOME AND IS RESPONSIBLE FOR THE OPERATION. BASED ON THE FOOD PREPARATIbN CAPACITY OF THE HOAM1E Ill, ANY PERSON(S) INVOLVED WITH THE MHKO NO SIGNAGE OR OTHER OUTDOOR DISPLAYS MUST OBTAIN A RIVERSIDE COUNTY FOO es...w.r.. c D HANDLER CERTIFICATION. ONLY ONE FULL — FOR ADVERTISING ARE ALLOWED. ALL INTERNET FOOD SERVICE INTERMEDIARIES USED MUST BE �Y ■ • APPROVED BY THE CALIFORNIA DEPARTMENT OF ,. TIME EMPLOYEE, NOT INCLUDING FAMILY OR HOUSEHOLD MEMBERS, IS ALLOWED THE MHKO OPERATOR SHALL SUCCESSFULLY PASS AN APPROVED AND ACCREDITED FOOD SAFETY PUBLIC HEALTH. T^ FOOD FROM A MHKO CANNOT BE SOLD TO OTHER FOOD FACILITIES FOR RESALE. MANAGER CERTIFICATION EXAMINATION. DELIVERY TO THE CONSUMER MUST BE DONE BY AN ALL FOOD MUST BE PREPARED, COOKED, AND SERVED ON r" �r� py . EMPLOYEE OF THE MHKO, A FAMILY MEMBER, OR ■■ THE SAME DAY. HOUSEHOLD MEMBER OF THE PERMIT HOLDER. 1 IiA `� MHKOS MAY NOT PRODUCE, SERVE, OR USE RAW MILK, SERVE RAW OYSTERS, OR ANY FOOD THAT WOULD x REQUIRE A HACCP PLAN. CONTACT AN ENVIRONMENTAL HEALTH SPECIALIST AND SUBMIT STANDARD OPERATING+ PROCEDURES WITH ALL REQUIRED DOCUMENTATION. /'� Appyication L SUBMIT A MHKO PERMIT APPLICATION. 3 SCHEDULE AN INSPECTION WITH AN ENVIRONMENTAL HEALTH SPECIALIST. THE FOLLOWING AREAS WILL BE INSPECTED: CONSUMER EATING AREA, RESTROOM, JANITORIAL OR CLEANING FACILITIES, REFUSE STORAGE AREA, AND ATTACHED ROOMS WITHIN THE HOME THAT ARE USED FOR FOOD, UTENSIL, AND EQUIPMENT STORAGE. THIS WILL ALSO INCLUDE ANY VEHICLES USED FOR TRANSPORTING FOOD TO OR FROM A MHKO. DETACHED ACCESSORY BUILDINGS, INCLUDING GARAGES AND SLEEPING QUARTERS, ENCLOSED PATIOS, OR SECOND UNITS ARE NOT ALLOWED TO BE USED FOR FOOD, UTENSIL, OR EQUIPMENT STORAGE. 4 ONCE ALL THE ABOVE DOCUMENTS HAVE BEEN REVIEWED AND APPROVED BY THIS DEPARTMENT, AND THE HOME INSPECTION IS COMPLETE, THE MHKO MAY BE APPROVED TO OPERATE. Q�ov�o AQpR�� Qv 9pPR0 Attachment C AB 377 AMENDED IN SENATE MAY 20, 2019 AMENDED IN ASSEMBLY MARCH 25, 2019 AMENDED IN ASSEMBLY MARCH 11, 2019 CALIFORNIA LEGISLATURE-2019-20 REGULAR SESSION ASSEMBLY BILL No. 377 Introduced by Assembly t etn4yer Members Eduardo Garcia and Mayes February 5, 2019 An act to amend Sections 114367.1, 114367.2, 114367.5, and 114367.6 of, and to repeal and add Sections 114367 and 114367.3 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 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" 96 AB 377 —2— 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. Vote: 2/3. Appropriation: no. Fiscal committee: yes. State -mandated local program: yes. The people of the State of California do enact as follows: 1 SECTION 1. Section 114367 of the Health and Safety Code 2 is repealed. 3 SEC. 2. Section 114367 is added to the Health and Safety Code, 4 to read: 5 114367. The governing body of a city, county, or city and 6 county that is designated as the enforcement agency, as defined 7 in Section 113773, may authorize, by ordinance or resolution, 8 within its jurisdiction the permitting of microenterprise home 9 kitchen operations in accordance with this chapter. If a governing 10 body of a city, county, or city and county authorizes the permitting 11 of microenterprise home kitchen operations, the authorization shall 12 apply to all areas within its jurisdiction, including being applicable 13 to all cities within a county that authorizes microenterprise home 14 kitchen operations, regardless of whether each city located within 15 the jurisdiction of the county separately authorizes them. 16 SEC. 3. Section 114367.1 of the Health and Safety Code is 17 amended to read: 18 114367.1. (a) A microenterprise home kitchen operation, as 19 defined in Section 113825, shall be considered a restricted food 20 service facility for purposes of, and subject to all applicable 96 -3— AB 377 1 requirements of, Chapter 1 (commencing with Section 113700) to 2 Chapter 9 (commencing with Section 114265), inclusive, and 3 Chapter 13 (commencing with Section 114380), except as 4 otherwise provided in this chapter. 5 (b) A microenterprise home kitchen operation shall be exempt 6 from all of the following provisions: 7 (1) Handwashing facilities requirements, as required in Section 8 113953, provided that a handwashing sink is supplied with warm 9 water and located in the toilet room and supplied, as specified in 10 Section 113953.2. 11 (2) Any provision in this part relating to sinks, warewashing 12 machines, and manual or machine sanitation, including, but not 13 limited to, Sections 114099, 114099.2, 114099.4, 114101.1, 14 114101.2, 114103, 114107, 114123, 114125, 114163, and 114279, 15 provided that all of the following conditions are met: 16 (A) Utensils and equipment are able to be properly cleaned and 17 sanitized. 18 (B) The sink in a microenterprise home kitchen operation has 19 hot and cold water and is fully operable. 20 (C) If a dishwasher is used, it shall be operated in accordance 21 with the manufacturer's specifications. 22 (3) Prohibition on the presence of persons unnecessary to the 23 food facility operation in the food preparation, food storage, or 24 warewashing areas, as specified in Section 113945.1, provided 25 that the permitholder takes steps to avoid any potential 26 contamination to food, clean equipment, utensils, and unwrapped 27 single -service and single -use articles and prevents a person 28 suffering from symptoms associated with acute gastrointestinal 29 illness or person known to be infected with a communicable disease 30 that is transmissible through food to enter the food preparation 31 area while food is being prepared as part of a microenterprise home 32 kitchen operation. 33 (4) No smoking sign posting requirements, as specified in 34 Section 113978. 35 (5) Limitations on employee consumption of food, drink, or 36 tobacco outside of designated areas, as specified in Sections 113977 37 and 114256, provided that the permitholder takes steps to avoid 38 any potential contamination to food, clean equipment, utensils, 39 and unwrapped single -service and single -use articles and prevents 40 a person suffering from symptoms associated with acute 96 AB 377 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 !M 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, 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) Requirements to provide clean drinking cups and tableware for second portions and beverage refills, as specified in Section 114075. (9) Requirements pertaining to the characteristics and certification of utensils and equipment, as specified in Sections 114130 and 114139, provided that utensils and equipment are designed to retain their characteristic qualities under normal use conditions. (10) Requirements pertaining to the characteristics, construction, and multiuse of food -contact and nonfood -contact surfaces, as specified in Sections 114130.3 and 114130.4, provided that food contact surfaces are smooth, easily cleanable, and in good repair. (11) Requirements pertaining to the characteristics, construction, and disassembly of clean in place (CIP) equipment, as specified in Section 114130.5. (12) Limitations on the use of wood as a food contact surface and in connection with other equipment, as specified in Section 114132, provided that hard maple or equivalent wood is approved for use in direct contact with food during preparation. (13) Any provision in this part relating to ventilation, including, but not limited to, Article 2 (commencing with Section 114149) 96 — 5 — AB 377 1 of Chapter 6, provided that gases, odors, steam, heat, grease, 2 vapors, and smoke are able to escape from the kitchen. 3 (14) Requirements that cold or hot holding equipment used for 4 potentially hazardous food be equipped with integral or 5 permanently affixed temperature measuring device or product 6 mimicking sensors, as specified in subdivision (c) of Section 7 114157. 8 (15) Requirements pertaining to the installation of fixed, 9 floor -mounted, and table -mounted equipment, as specified in 10 Section 114169. 11 (16) Dedicated laundry facility requirements, as specified in 12 Section 114185.5, provided that linens used in connection with 13 the microenterprise home kitchen operation shall be laundered 14 separately from the household and other laundry. 15 (17) Requirements pertaining to water, plumbing, drainage, and 16 waste, as specified in Sections 114193, 114193.1, and 114245.7. 17 (18) Any requirement that a microenterprise home kitchen 18 operation have more than one toilet facility or that access to the 19 toilet facility not require passage through the food preparation, 20 food storage, or utensil washing areas, including, but not limited 21 to, the requirements specified in Sections 114250 and 114276. 22 (19) Light intensity, light source, and lightbulb requirements, 23 as specified in Sections 114252 and 114252.1, provided that food 24 preparation areas are well lighted by natural or artificial light 25 whenever food is being prepared. 26 (20) Requirements to provide and use lockers, storage facilities, 27 and designated dressing areas, and that food facility premises be 28 free of litter and items that are unnecessary to the operation, as 29 specified in Sections 114256.1 and 114257.1, provided that 30 personal effects and clothing not ordinarily found in a home kitchen 31 are placed or stored away from food preparation areas and dressing 32 takes place outside of the kitchen. 33 (21) Limitations on the presence and handling of animals, such 34 as domestic, service, or patrol animals, as specified in Sections 35 114259.4 and 114259.5, provided that all animals are kept outside 36 of the kitchen during food service and preparation. 37 (22) Requirements pertaining to floor, wall, and ceiling surfaces, 38 as specified in Sections 114268, 114269, and 114271, provided 39 that the floor, wall, and ceiling surfaces of the kitchen, storage, 40 and toilet areas are smooth, of durable construction, and easily 96 AB 377 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 cleanable with no limitations on the use of wood, tile, and other nonfiber floor surfaces ordinarily used in residential settings. (23) Any local evaluation or grading system for food facilities, as authorized by Section 113709. (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. (25) Planning and permitting provisions of Sections 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. 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. 96 — 7 — AB 377 1 (c) The applicant shall submit to the enforcement agency written 2 standard operating procedures that include all of the following 3 information: 4 (1) All food types or products that will be handled. 5 (2) The proposed procedures and methods of food preparation 6 and handling. 7 (3) Procedures, methods, and schedules for cleaning utensils, 8 equipment, and for the disposal of refuse. 9 (4) How food will be maintained at the required holding 10 temperatures, as specified in Section 113996, pending pickup by 11 consumer or during delivery. 12 (5) Days and times that the home kitchen may potentially be 13 utilized as a microenterprise home kitchen operation. The stated 14 days and times are not binding on the permitholder and shall be 15 used for information purposes only. 16 (d) (1) The enforcement agency shall issue a permit after an 17 initial inspection has determined that the proposed microenterprise 18 home kitchen operation and its method of operation comply with 19 the requirements of this chapter. 20 (2) An enforcement agency shall not require a microenterprise 21 home kitchen operation to comply with food safety requirements 22 that are different from, or in addition to, the requirements of this 23 chapter. 24 (e) For purposes of permitting, the permitted area includes the 25 home kitchen, onsite consumer eating area, food storage, utensils 26 and equipment, toilet room, janitorial or cleaning facilities, and 27 refuse storage area. Food operations shall not be conducted outside 28 of the permitted areas. 29 (f) An enforcement agency may require a microenterprise home 30 kitchen operation to renew its permit annually. 31 (g) A permit, once issued, is nontransferable. A permit shall be 32 valid only for the person and location specified by that permit, 33 and, unless suspended or revoked for cause, for the time period 34 indicated. 35 (h) The permit, or an accurate copy thereof, shall be retained 36 by the operator onsite and displayed at all times the microenterprise 37 home kitchen operation is in operation. 38 (i) An enforcement agency may collect a fee for the issuance 39 of a permit pursuant to this chapter in an amount that does not 96 AB 377 — 8 — 1 exceed the reasonable administrative costs by the enforcement 2 agency in issuing the permit. 3 SEC. 5. Section 114367.3 of the Health and Safety Code is 4 repealed. 5 SEC. 6. Section 114367.3 is added to the Health and Safety 6 Code, to read: 7 114367.3. (a) Notwithstanding any other law, a microenterprise 8 home kitchen operation shall only be subject to the three following 9 types of inspections by the enforcement agency: 10 (1) A routine inspection for the purpose of allowing the 11 enforcement agency to observe the permitholder engage in the 12 usual activities of a microenterprise home kitchen operation, 13 including, but not limited to, active food preparation. The 14 enforcement agency shall provide notice to a permitholder before 15 a routine inspection and shall conduct the routine inspection at a 16 mutually agreeable date and time. A microenterprise home kitchen 17 operation shall not be subject to more than one routine inspection 18 within 12 months. This paragraph shall not be deemed to require 19 the enforcement agency to conduct a routine inspection. 20 (2) An investigation inspection for the purpose of allowing the 21 enforcement agency to perform an inspection when the enforcement 22 agency has just cause that adulterated or otherwise unsafe food 23 has been produced or served by the microenterprise home kitchen 24 operation or that the permitholder has otherwise violated this part. 25 One or more consumer complaints may constitute just cause for 26 an investigation inspection. The enforcement agency shall provide 27 notice to a permitholder before an investigation inspection and 28 shall conduct the investigation inspection at a mutually agreeable 29 date and time. 30 (3) An emergency inspection for the purpose of allowing the 31 enforcement agency to perform a limited inspection when the 32 enforcement agency has just cause that the microenterprise home 33 kitchen operation poses a serious hazard or immediate threat to 34 public health. To the extent that notice of an emergency inspection 35 is reasonable under the circumstances, the enforcement agency 36 shall provide notice to a permitholder before an emergency 37 inspection. The scope of emergency inspection shall be limited in 38 duration and scope to address the facts giving just cause that the 39 microenterprise home kitchen operation poses a serious hazard or 40 immediate threat to public health. 0L — 9 — AB 377 1 (b) The enforcement agency shall only inspect the permitted 2 area of the microenterprise home kitchen operation for the purpose 3 of enforcing or administering this part. 4 (c) The enforcement agency may seek recovery from a 5 microenterprise home kitchen operation of an amount that does 6 not exceed the enforcement agency's reasonable costs of inspecting 7 the microenterprise home kitchen operation for compliance with 8 this part if the microenterprise home kitchen operation is found to 9 be in violation of this part. 10 SEC. 7. Section 114367.5 of the Health and Safety Code is 11 amended to read: 12 114367.5. (a) A person delivering food on behalf of a 13 microenterprise home kitchen operation with a permit issued 14 pursuant to Section 114367.2 shall be an employee of the 15 microenterprise home kitchen operation or a family member or 16 household member of the permitholder. 17 (b) Food produced in a microenterprise home kitchen operation 18 shall not be delivered by a third -party delivery service. 19 SEC. 8. Section 114367.6 of the Health and Safety Code is 20 amended to read: 21 114367.6. (a) An internet food service intermediary that lists 22 or promotes a microenterprise home kitchen operation on its 23 internet website or mobile application shall meet all of the 24 following requirements: 25 (1) Be registered with the department. A registration, once 26 issued, is nontransferable. A registration shall be valid only for 27 the person and type of business specified by that registration, and 28 unless suspended or revoked for cause by the department. 29 (2) Prior to the listing or publication of a microenterprise home 30 kitchen operation's offer of food for sale, clearly and conspicuously 31 post on its internet website or mobile application the requirements 32 for the permitting of a microenterprise home kitchen specified in 33 this chapter, which shall be written at the high school level and be 34 provided by the department. 35 (3) Clearly and conspicuously post on its internet website or 36 mobile application the fees associated with using its platform in a 37 manner that allows both the consumer and the microenterprise 38 home kitchen operation to see and understand the amount being 39 charged for the services provided by the internet food service 40 intermediary. The internet food service intermediary shall notify 96 AB 377 10 1 the microenterprise home kitchen operation of any changes to these 2 fees exceeding a 2-percent increase in writing and no later than 3 one month before the changes take effect. 4 (4) Clearly and conspicuously post on its internet website or 5 mobile application whether or not it has liability insurance that 6 would cover any incidence arising from the sale or consumption 7 of food listed or promoted on its internet website or mobile 8 application. 9 (5) Provide a dedicated field on its platform for a microenterprise 10 home kitchen operation to post the permit number and the name 11 of the eounly of the enforcement agency that issued the permit. 12 (6) Clearly and conspicuously post on its internet website or 13 mobile application how a consumer can contact the internet food 14 service intermediary through its internet website or mobile 15 application if the consumer has a food safety or hygiene complaint 16 and a link to the department's internet website that contains 17 information for how to file a complaint with the enforcement 18 agency. 19 (7) Submit the name and permit number of a microenterprise 20 home kitchen operation to the enforcement agency that issued the 21 permit to the microenterprise home kitchen operation if the internet 22 food service intermediary receives, through its internet website or 23 mobile application, three or more unrelated individual food safety 24 or hygiene complaints in a calendar year from consumers that have 25 made a purchase through its internet website or mobile application. 26 The internet food service intermediary shall submit this information 27 to the enforcement agency within two weeks of the third complaint 28 received. 29 (8) If it is notified by the enforcement agency of significant 30 food safety related complaints from a verified consumer that has 31 made a purchase through its internet website or mobile application, 32 submit to the enforcement agency the name and permit number of 33 microenterprise home kitchen operation where the food was 34 purchased, and a list of consumers who purchased food on the 35 same day from that microenterprise home kitchen operation through 36 its internet website or mobile application. 37 (9) Prior to the listing or publication of a microenterprise home 38 kitchen operation's offer of food for sale, obtain consent from the 39 microenterprise home kitchen operation to make the disclosures 40 to government entities required pursuant to this section. 96 -11— AB377 1 (10) Shall not permit the use of the word "catering" or any 2 variation of that word in a listing or publication of a 3 microenterprise home kitchen operation's offer of food for sale. 4 (11) Shall not use, or knowingly facilitate the use of, a 5 third -parry delivery service for food produced by the 6 microenterprise home kitchen operation. 7 (b) For purposes of this chapter, an "internet food service 8 intermediary" means an entity that provides a platform on its 9 internet website or mobile application through which a 10 microenterprise home kitchen operation may choose to offer food 11 for sale and from which the internet food service intermediary 12 derives revenues, including, but not limited to, revenues from 13 advertising and fees for services offered to a microenterprise home 14 kitchen operation. Services offered by an internet food service 15 intermediary to a microenterprise home kitchen operation may 16 include, but are not limited to, allowing a microenterprise home 17 kitchen operation to advertise its food for sale and providing a 18 means for potential consumers to arrange payment for the food, 19 whether the consumer pays directly to the microenterprise home 20 kitchen operation or to the internet food service intermediary. 21 Merely publishing an advertisement for the microenterprise home 22 kitchen operation or food cooked therein does not make the 23 publisher an internet food service intermediary. 24 (c) (1) A microenterprise home kitchen operation that advertises 25 to the public, including, but not limited to, advertising by website, 26 internet, social media platform, newspaper, newsletter, or other 27 public announcement, shall include all of the following within the 28 advertisement: 29 (A) Name of the enforcement agency that issued the permit. 30 (B) Permit number. 31 (C) Statement that the food prepared is "Made in a Home 32 Kitchen" in a clear and conspicuous font and location within a 33 written advertisement and an audible and comprehensible manner 34 in a verbal advertisement. 35 (2) A microenterprise home kitchen operation shall not use the 36 word "catering" or any variation of that word in an advertisement 37 relating to the microenterprise home kitchen operation's offer of 38 food for sale. 39 SEC. 9. No reimbursement is required by this act pursuant to 40 Section 6 of Article XIII B of the California Constitution because 96 AB 377 —12 1 the only costs that may be incurred by a local agency or school 2 district will be incurred because this act creates a new crime or 3 infraction, eliminates a crime or infraction, or changes the penalty 4 for a crime or infraction, within the meaning of Section 17556 of 5 the Government Code, or changes the definition of a crime within 6 the meaning of Section 6 of Article XIII B of the California 7 Constitution. 8 SEC. 10. This act is an urgency statute necessary for the 9 immediate preservation of the public peace, health, or safety within 10 the meaning of Article IV of the California Constitution and shall 11 go into immediate effect. The facts constituting the necessity are: 12 To ensure a uniform implementation of the health and food safety 13 responsibilities of microenterprise home kitchen operations 14 throughout the state, it is necessary that this act take effect 15 immediately. X 96 Attachment D Letter of Opposition CITY Of PRIM 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL: 760 346-o6i i info@cityofpalmdesert.org Sample July 1, 2019 Name Address Sacramento, CA 94249 Re: Assembly Bill 377 (Garcia, Eduardo) microenterprise home kitchen operations - oppose The Honorable (Name): The City of Palm Desert recognizes and supports the value of small local businesses; however, we urge your opposition on Assembly Bill 377 (Garcia, Eduardo), which essentially authorizes only counties to permit microenterprise home kitchen operations throughout local jurisdictions. In the 2017-18 Regular Session, the State Legislature approved Assembly Bill 626 (Garcia), which revised the Health and Safety Code to allow for microenterprise home kitchen operations (MHKOs). Once enacted, the law allowed for home -based restaurants by allowing residents to prepare, delivery, and/or serve up to 60 meals per week with an annual sales cap of $50,000. However, the law was unclear regarding which governing body was responsible for "opting in" to having MHKOs. While AB 377 does provide necessary health -related cleanup language relating to MHKOs, it clearly infringes on local control by generally only allowing counties to opt in to having MHKOs. Please note that once a county opts in, MHKOs may operate according to the law within all cities under county limits. Maintaining local control is crucial since this legislation impacts land use by converting homes into restaurants. Notwithstanding, MHKOs may create valuable small business opportunities in our community; however, it should be a local decision based upon further review and discussion. Please feel free to contact me if you would like to have further discussions regarding our legislative position. Thank you. Sincerely, Susan Marie Weber Mayor • PflIXiE00X flE(Y(LEO PflPEfl