Banning Municipal Code Art. V Cottage Food Operations

A. Authority. On September 21, 2012, AB 1616, the "California Homemade Food Act," was signed into law requiring cities and counties to allow homemade food operators by adding Chapter 6.1 (commencing with Section 51035) to Part 1 of Division 1 of Title 5 of the Government Code, and to amend Sections 109947, 110050, 110460, 111955, 113789, 115851, 114021, 114023, 114390, 114405, and 114409, to add Sections 113758 and 114088 to, and to add Chapter 11.5 (commencing with Section 114365) to Part 7 of Division 104 of the Health and Safety Code, relating to food safety. Such provisions, as amended by the State of California from time to time, are hereby incorporated by reference. Subject to the provisions under state law, and additional criteria established in this section and chapter 17.72, home occupation permits, homemade food operators may apply for approval from the City of Banning Home Occupation Permit as provided for in chapter 17.72 of the zoning ordinance.

B. Purpose. The purpose of this section is to establish and regulate homemade food operators and to set local requirements in addition to those required under the California Homemade Food Act for businesses to be conducted in a home kitchen. Such homemade food operations shall be accessory to a residential land use where such a use will clearly not be disruptive or alter the character or the appearance of the neighborhood.

C. Definitions.

1. "Cottage food operation" and/or "homemade food operation (HFO)" shall mean an enterprise with annual gross sales limits set forth under California Health and Safety Code Section 113758(a), operated by a homemade food operator having no more than one full-time equivalent employee, conducted within a private home kitchen where the homemade food operator resides, and where homemade food products are prepared or packaged for direct, indirect, or direct and indirect sales pursuant to Section 113758 of the California Health and Safety Code. A homemade food operation may engage in the following sales activity subject to approval from the health department:

a. Class A homemade food operations may engage only in direct sales of homemade food products from the homemade food operation or other direct sale venues such as temporary events. Door-to-door sales shall be prohibited.

b. Class B homemade food operators may engage in both direct and indirect sales of homemade food products such as a permitted third-party retail food facility.

2. "Cottage food operator" or "homemade food operator" shall mean an individual who owns or operates a homemade food operation in his or her private home kitchen.

3. "Cottage food product" or homemade food product" shall mean non-potentially hazardous foods and food products that do not require refrigeration to prevent bacteria growth and as otherwise defined in Section 113871 of the California Health and Safety Code. Pursuant to Section 114365.5(a) of the California Health and Safety Code, the health department shall adopt and post on its internet website a list of non-potentially hazardous foods that are approved for sale by a homemade food operation.

4. "Health department" shall mean the Riverside County Department of Environmental Health.

5. "Private home" shall mean any lawfully constructed single-family, multiple-family, factory built or manufactured dwelling units that are occupied and used by an individual(s) as a principal residence. Detached accessory buildings, including garages, carports, guest quarters, enclosed patios, second dwelling units, and storage sheds shall not be included as permitted areas for the purpose of this chapter.

6. "Private home kitchen" shall mean the kitchen described and authorized in the permit or registration for the homemade food operation and will be used for the preparation, packaging, storing, or handling of homemade food products and related ingredients, equipment, and attached rooms within the house that are used exclusively for storage.

D. Permit and business license required. Dwelling units may be used for business purposes when a business license, in conformance with chapter 17.72, and a home occupation permit have been issued. A home occupation permit shall be required for each business. If a business license for a homemade food operator is not renewed, the home occupation permit shall automatically expire with the business license. A fee for the processing of a home occupation permit may be established from time to time by resolution of the city council.

E. Issuance of permit. The community development director may, upon application, and payment of the required fee, issue a homemade food operator permit, with the conditions required in this section and the zoning ordinance and any time limitations that are deemed necessary. The permit shall not be issued unless the community development director is satisfied that the applicant will meet all the conditions listed in this section and chapter 17.72 of the zoning ordinance; and, the applicant has agreed in writing to comply with such conditions. The community development director may require a hearing for homemade food operators which the director determines potentially may not meet the purposes of this section. If a hearing is required it shall be in accordance with the requirements of section [chapter] 17.68 of the zoning ordinance.

F. Annual renewal fee required. An annual fee for the renewal of a home occupation permit may be established by resolution of the city council. The purpose of the renewal fee is to recover the cost of staff time to notify the health department regarding the continued use of the homemade food operation, and to determine whether or not the operator remains in compliance with city regulations and standards.

G. Limitations on homemade food operation permit. A maximum of one homemade food operation permit shall be deemed active and approved at any time for each private home. If more than one permit has been issued for the same private home, only the most recently approved application shall be deemed to be active. All other prior applications shall be deemed void. Such limitation shall not preclude a resident from also obtaining a home occupation permit pursuant to chapter 17.72, for a non-food related home-based business.

H. Owner authorization required. A non-owner occupant of a private home, e.g., tenant, shall provide an authorization statement from the owner of the property or the property management company indicating support for the proposed homemade food operation on their property. Such authorization shall include the name, address, telephone number, and other contact information of the owner or manager of the property. Failure to provide complete and accurate authorization information shall result in the denial or revocation of a home occupation permit.

I. Conflicting provisions. In the event that the type of permit required for a proposed use under this section differs from the permit authority allowed under California Assembly Bill 1616, the provisions of AB 1616 shall apply.

J. Exceptions. Homemade food operations shall not be permitted in any second unit, guest quarter or other accessory building in any zoning district.

K. Conditions. The director shall review and decide upon all applications for cottage food operations, with the permit being granted if the cottage food operation complies with local ordinances prescribing reasonable standards, restrictions, and requirements concerning the following factors: spacing and concentration, traffic control, parking, and noise control relating to those homes. Any noise standards shall be consistent with local noise ordinances implementing the noise element of the general plan.

The following conditions shall be observed at all times by the holder of a home occupation permit for the purpose of homemade food operations. In order to meet the purposes of the zoning district, for public safety, and/or to meet the requirements of state and local laws, the director may require additional conditions.

1. A homemade food operation shall comply with all development standards for the zoning district in which the use is located, in addition to the requirements of this section and chapter 17.72, home occupation permits.

2. A homemade food operation shall comply with all permitting and licensing requirements of the Riverside County Department of Environmental Health.

3. Signs or advertising shall not be displayed on the premises except for signing permitted under chapter 17.36, sign regulations of the zoning ordinance.

4. No more than one employee, assistant or volunteer other than the licensee shall participate in the HFO food preparation activities on the premises.

5. The homemade food operation, including inventory and supplies stored on the premises, shall be conducted wholly within the principal structure and shall not exceed twenty-five percent of the total floor area. The required garage space, or any other accessory structure shall not be utilized for homemade food operator purposes or storage. Required off street parking areas shall not be utilized for homemade food operators other than for parking, and shall not be considered as part of the total floor area.

6. Display(s) of any kind shall not be visible from the exterior of the premises. For the purposes of this condition, "displays" shall mean merchandise, food products, representations of merchandise and/or food products or other items related to homemade food operations, except to the extent a sign may be permitted in accordance with condition no. 3 above.

7. No mechanical or electrical apparatus, equipment or tools shall be permitted except those items which are commonly associated with residential use or are customary to home kitchens. No motor other than electrically operated motors shall be used in connection therewith, and that the total horsepower of such motors shall not exceed one-half horsepower in all.

8. Pedestrian or vehicular traffic shall not be in excess of that customarily associated with the zoning district in which the use is located. Customer visits to a homemade food operator's home shall adhere to the following maximum standards:

a. Hours of operation are limited to between 8:00 a.m. and 5:00 p.m., Mondays through Fridays.

b. No more than two customers per visit.

c. No more than four customer visits per hour.

9. Except for homemade food products that have been prepared for sale in the private kitchen of a homemade food operator, no customer services or sales of goods, wares or merchandise shall be made on the premises.

10. There shall be conformity with fire, building, plumbing, electrical and health codes and with all state and local laws.

11. There shall be no demand for municipal or utility services or community facilities in excess of those usual and customary for residential use.

12. The residential character of the premises shall not be altered, nor shall the use unreasonably disturb the peace and quiet of the area, including alteration or disturbance relating to radio and television reception, color, design, materials, construction, lighting, sounds, noises, vibrations or vehicles.

13. The community development director, in approving a homemade food operator permit, may impose any additional conditions as deemed necessary to carry out the intent of this section.

14. If the municipal codes applicable to the premises are amended to prohibit such use, the homemade food operator permit shall be canceled within ninety days after notification.

15. No cottage food operation shall be approved if: (i) the property line of the site of the proposed use is located within three hundred feet and on the same street or the corner of a cross-street of the property line of any single-family home where another cottage food operation is located; or (ii) if the proposed use is located within the same building of an apartment complex or other multifamily housing (i.e. condominiums or townhomes) where another cottage food operation exists.

16. The use or storage of any flammable, combustible or toxic materials in conjunction with a homemade food operation shall be limited to materials and quantities allowed for a residential use pursuant to applicable law.

17. A homemade food operation shall comply with all health and safety standards as set forth in Health and Safety Code section 114365. No homemade food operations shall be permitted when the same is objectionable due to noise, dust, smoke, odor, poisons, toxic substances, flammability, or other causes detrimental to the general health, safety and welfare of the community.

L. Grounds for revocation of permit. Any homemade food operator permit shall be revoked by the community development director upon violation of any requirements of this chapter, chapter 17.72, home occupation permits, upon notification by the health department that the Class A or the Class B permit has been revoked, or upon failure to comply with any of the conditions or limitations of the permit, unless such violation is corrected within three days of the giving of written notice thereof. A permit may be revoked for repeated violation of the requirements of this chapter, notwithstanding further notice.

M. Appeal of denial or revocation of permit. A decision of the community development director may be appealed to the planning commission as prescribed in chapter 17.68, hearings and appeals.

(Ord. No. 1463, § 2, 7-9-13)