Berkeley Municipal Code Ch. 11.28 Food Establishments

The California Health and Safety Code, Division 104. Environmental Health, Part 7. California Retail Food Code as amended from time to time, is adopted as part of this title. (Ord. 7739-NS § 1, 2020; Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 1 § 1, 1976)

A. "Boardinghouse" means any building or structure occupied or intended, arranged or designed for occupation by five or more guests where rooms and meals are provided for compensation. The term "boardinghouse" includes "fraternity," "sorority," "guesthouse," "residence club," "lodge," and any of its variants.

B. “Cottage Food Operation” means that as defined in the California Retail Food Code (Cal Code)

C. "Employee" means any person working in an operation covered by this chapter who engages, with or without pay, in the dispensing, processing or other preparation or handling of food and beverages or in the cleaning of equipment and utensils used therein.

D. "Food establishment" means any restaurant, vehicle, itinerant restaurant, mobile food-preparation unit, vending machine, bakery, food processing establishment, delicatessen, grocery, confectionery, meat market or plant, meat jobber, food jobber, microenterprise home kitchen, cottage food operation, and any other establishment or place, or portion thereof, maintained, used or operated for the purpose of commercially storing, packaging, displaying, making, cooking, baking, mixing, processing, bottling, canning, slaughtering or otherwise preparing or handling food or beverage.

E. "Food or beverage" includes all articles used for food, drink, confectionery or condiment, whether simple or compound, and all substances and ingredients used in the preparation thereof for human consumption. The term "food or beverage" includes ice.

F. "Imminent health hazard" means any condition in a food establishment that can cause food infection, food intoxication, or disease transmission, including, but not limited to improper temperature controls, sewage contamination, and employees that are carriers of communicable diseases.

G. "Meat" means and shall be construed to include all sorts of meats or meat food products kept or exposed for sale for human food, such as the flesh of any cattle, hogs, sheep, swine, goats, poultry or rabbits, or any other animal, poultry, fish or shellfish, except horsemeat.

H. "Mechanical refrigeration" means a unit which extracts heat from an area by means of liquification and evaporation of a fluid by means of compressor or flame, or by means of a thermoelectric device. Acceptable mechanical refrigeration shall also include cold plates.

I. “Microenterprise Home Kitchen Operation” means that as defined by the Cal Code.

J. "Potentially hazardous food" means food or beverage which is capable of supporting rapid and progressive growth of pathogenic microorganisms which can cause food infections or intoxications, or which is otherwise subject to spoilage by reason of lack of refrigeration. "Potentially hazardous food" shall include but not be limited to custard- and cream-filled pastries; prepared salads with dressing; sandwiches using mayonnaise, salad or butter dressings; precooked meat, not hermetically sealed; fresh meats, dairy products; and all processed and packaged food and beverage labeled "frozen" or whose label indicates that the product must be kept under refrigeration.

K. "Process" means and includes the manufacture, preparation, storing, packaging, packing, making, cooking, mixing, processing, compounding, portioning, bottling, canning, slaughtering, or any similar activity related to the preparing or handling of food. (Ord. 7739-NS § 2, 2020; Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 2 §§ 1--9, 1976)

This chapter shall not apply to meat, milk processing establishments, frozen food lockers, canneries, abatoirs or such other food establishments that are inspected and licensed by federal or state agencies for the purpose of insuring that food and beverage processed therein is in a safe and sanitary condition and suitable for human consumption and which do not sell or deliver directly to the ultimate consumer. Nor shall this chapter apply to such plants or establishments for the packing, treatment and processing of agricultural crops where such plant or establishment is operated as part of an agricultural pursuit conducted on the premises. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 3 § 1, 1976)

No person shall operate or cause to be operated any food establishment without first obtaining a permit issued by the chief of environmental health. No person shall establish, enlarge or begin construction, reconstruction or alteration of a food establishment without first submitting plans, specifications and other information as may be required to determine compliance with this chapter and other applicable laws to the chief of environmental health for their review and written approval. Such plans, specifications and information shall be submitted in triplicate, one copy of which shall be for the chief of environmental health’s file. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 4 § 1, 1976)

Upon issuance of a permit to operate a food establishment, the chief of environmental health shall establish a routine inspection program for that establishment to secure compliance with all applicable ordinances, statutes and regulations. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 4 § 2, 1976)

In any food establishment, the minimum finished ceiling height shall be not less than eight feet from the finished floor in all rooms or areas where food or beverage is processed or served, or where utensils are cleaned. Exposed studs and rafters shall not be permitted in rooms or areas where food, beverage or utensils are not otherwise securely protected from the dust, dirt, filth or other foreign contamination which may accumulate on the exposed studs and rafters. All walls and ceilings shall be smooth, in good repair, kept clean, and painted with light colored, high gloss or semi-gloss material, including paint and other acceptable surfacing which is approved by the chief of environmental health. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 1, 1976)

A. In any food establishment, the floor surfaces in all rooms in which any food or beverage is stored, prepared or packaged, where utensils are washed, or where refuse or garbage is stored, and the floor surfaces of toilet, dressing or locker rooms and of walk-in refrigerators shall be of such construction and nonabsorbent material as to be easily cleaned. They shall be smooth, in good repair and kept clean.

B. The floor surfaces in all rooms in which any food or beverage is prepared or packaged, where refuse or garbage is stored, and the floor surfaces of toilet rooms and of walk-in refrigerators constructed or remodeled on or after January 1, 1977, shall be covered at the floor-wall juncture with a three-eighths-inch minimum radius coving. Such floor surfaces shall be extended up the wall at least six inches. The floor surfaces in all rooms where any food, beverage or utensil is stored in an opened container shall be coved at the floor juncture with a three-eighths-inch minimum-radius coving and shall extend up the wall at least six inches. Coving shall not be required in storage rooms where any food or beverage is stored in any unopened bottle, can, carton, sack, or other original shipping container.

C. Upon new construction or remodeling involving floor structures on or after January 1, 1977, floor drains shall be installed in all rooms in which food or beverage is prepared or packaged, where any utensil is washed, or refuse or garbage is stored; in all toilet rooms; and in areas immediately adjacent to doors servicing walk-in refrigerators. Such floors shall be sloped to drain so as to adequately keep moisture from accumulating on the floor.

D. The floors of rooms in which any food or beverage is served shall be clean and kept in good repair. The use of sawdust or similar materials is prohibited. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 2, 1976)

At least one hand-washing facility, with hot and cold running water under pressure, shall be installed within the food or beverage processing area and within the toilet facilities area. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 3, 1976)

All deep-fat fryers, ranges, grills, mechanical dishwashers or other cooking or washing equipment which produces smoke, steam or condensate shall be provided with suitable hoods and mechanical exhaust ventilation equipment where, in the opinion of the chief of environmental health, such installation or device is required to effectively remove cooking odor, smoke, steam, grease and vapors. Ventilation flues or ducts to the outside air shall be so located and installed as not to create a nuisance and hazard to adjoining property or persons. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 4, 1976)

All food establishments shall be provided with adequate and conveniently located toilet facilities for employees. All restaurants shall be provided with adequate and conveniently located toilet facilities for each sex, where there are five or more employees of different sex. All toilets shall be ventilated adequately to the outside air, and shall not open into a room in which food is prepared. All doors of all toilet rooms shall be self-closing. Toilet rooms shall be kept in a clean condition, in good repair and well lighted and ventilated. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 5, 1976)

A room or enclosure, separated from toilet compartments or any food processing room or area, shall be provided where employees may change and store their outer garments. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 6, 1976)

In all new food establishments, all soda fountain and luncheonette equipment, food service equipment, spray-type dishwashing machines, commercial cooking and warming equipment, commercial hot-water generating equipment, dispensing freezers and other similar equipment shall meet the standards for such equipment established by the National Sanitation Foundation, Ann Arbor, Michigan, or shall be of a type approved by the chief of environmental health. All equipment in a food establishment shall be installed in such a manner as to provide adequate space behind, around and underneath such equipment for proper cleaning thereof, unless the installation, construction or placement of such equipment precludes the need for such space. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 7, 1976)

When food service openings to the outside are used in food establishments, they shall have an area not exceeding two hundred sixteen square inches, with a maximum width of eighteen inches and a maximum height of twelve inches. Additional service openings must be separated by a minimum of eighteen inches. Such openings shall be screened or closed when not in use. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 8, 1976)

Waste drainage from refrigeration equipment in fixed food establishments shall be conducted by a closed system, such as by an impervious pipe or tube to a sewer line approved by the City, and shall be disposed therein by means of an indirect connection. No refrigerated storage cabinet or device shall be used for the storage of anything other than food or beverage which is ultimately intended for human consumption or for such equipment or devices used in the processing or preparation of food and beverage which requires refrigerated storage. An accurate and readily visible thermometer shall be maintained in each refrigeration device. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 9, 1976)

Cooking stoves and ranges shall be placed and maintained at least twenty inches from any wall; provided, however, that stoves and ranges may be placed and maintained flush with a wall where approved by the building official of the City. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 10, 1976)

Hot and cold running water, under pressure, shall be provided in all rooms or areas in which food is processed, utensils are washed, or hands are washed. The water supply shall be of a safe, sanitary quality. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 11, 1976)

Running-water dipper wells shall be provided for ice-cream dispensing utensils in all restaurants which handle or offer for sale real or imitation ice cream or similar food items. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 12, 1976)

A. All food or beverage shall be displayed, dispensed or served so as to be protected from dust, dirt, vermin, and contamination by rodents, dogs, or other animals, unnecessary handling, droplet infection, overhead leakage or other contamination.

B. All racks, sacks, boxes and containers shall be stored and arranged so as to facilitate the cleaning or flushing of floors and so as to eliminate vermin harborage. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 13, 1976)

All cleaned equipment and utensils shall be stored off the ground or floor and handled in such a manner as to be protected from vermin, splash, dust, condensation and other contamination. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 14, 1976)

In new food establishments, all garbage and rubbish and containers therefor shall be stored within a garbage room enclosure or confined area designed to prevent access by stray animals, vermin or scattering by wind action. Facilities for washing of garbage cans shall be provided. Garbage containers shall be thoroughly washed after each emptying and before reuse. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 5 § 15, 1976)

All food and beverage in a food establishment shall be free from adulteration, contamination, and shall otherwise be fully fit for human consumption. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 6 § 1, 1976)

All potentially hazardous food and beverages shall be stored, displayed or maintained under mechanical refrigeration at or below a temperature of forty degrees Fahrenheit. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 6 § 2, 1976)

Every commercial box lunch or wrapped sandwich sold or given away at other than the place where produced or prepared shall have printed thereon or fastened to the container in plain and legible letters the following information: The date on which said food is prepared, the name and address of the manufacturer and distributor, common name of the said food, a list of ingredients in descending order of predominance of said food, and the net weight of said food. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 6 § 3, 1976)

Whenever the chief of environmental health finds food or beverage which they have reason to suspect may be contaminated, adulterated, unwholesome or otherwise unfit for human consumption, they shall have power to destroy, denature or confiscate such food, or to quarantine such food by affixing to such article a tag or other appropriate marking giving notice that such article is, or is suspected of being, contaminated or adulterated and has been detained or quarantined. No food so detained or quarantined shall be removed or disposed of until after the quarantine has been removed by the chief of environmental health. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 6 § 4, 1976)

Whenever the chief of environmental health has reason to suspect that food or beverage may be contaminated, adulterated, unwholesome or otherwise unfit for human consumption, they may collect such samples as they deem necessary for such investigation or examination as may be required to determine that such food is adulterated, contaminated, unsound, or may contain any filthy, decomposed or putrid substance, or which may be poisonous or deleterious to health or otherwise unsafe. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 6 § 5, 1976)

In all vehicles, the driver’s compartment shall be entirely separated from the food storage compartment, and no food or beverage shall be kept in a driver’s compartment. No passenger or pleasure car may be used as a food establishment unless such car shall be modified to conform with the requirements for a food establishment vehicle as specified herein. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 7 § 1, 1976)

No food establishment vehicle, while open for business, shall stand in any place for a period of more than thirty minutes unless adequate toilet and washing facilities are available for the operators of such vehicle within one hundred fifty feet therefrom. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 7 § 2, 1976)

Any food establishment vehicle which is not moved at least five hundred feet within each twenty-four-hour period shall constitute a fixed location and shall comply with all laws and regulations pertaining to such food establishments. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 7 § 3, 1976)

Operators of restaurants shall keep an accurate, up-to-date list of all persons employed therein and shall furnish a true copy of such list to the Public Health Department of the City upon request. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 8 § 1, 1976)

A. All persons engaged in or supervising the handling, preparation, storage of food or drink or sanitizing of utensils in restaurants shall obtain a food handler’s card as herein provided.

B. It is unlawful for any person to engage in or supervise the handling, preparation or storage of food or drink or the sanitizing of utensils in any restaurant, or for any restaurant operator to employ or permit any person to engage in or supervise such activities for more than thirty days unless such person holds a valid food handler’s card or temporary food handler’s card issued by the Director of Public Health. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 8 § 2(a), (c), 1976)

Food handler’s cards shall be issued by the Director of Public Health. As a condition to the issuance thereof, the director shall require the satisfactory completion of a food handler’s course given by the Berkeley Public Health Department and such physical and other tests and examinations as they may deem necessary for protection of public health. Food handler’s cards shall be valid for two years. The Director may issue temporary food handler’s cards, pending satisfactory completion of an approved course of instruction in food handling. Temporary food handler’s cards shall be valid for not more than four months. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 8 § 2(b), 1976)

No manager, operator or owner of any restaurant shall continue to employ any employee who has not obtained a food handler’s card within the prescribed period. It shall be the duty of every employer to have the food handler’s card number of each employee recorded and readily available for inspection by the chief of environmental health. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 8 § 3, 1976)

No person shall be employed in a food establishment who, in the opinion of the chief of environmental health, is affected with or a carrier of any disease in a stage which is likely to be communicable to persons exposed as a result of the affected employee’s normal duties as a food handler. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 8 § 4, 1976)

When information as to the possibility of disease transmission is presented to the chief of environmental health, they shall investigate conditions and take appropriate action. Such action may consist of any or all of the following measures:

A. The immediate exclusion of such employee or owner from the food establishment by the chief of environmental health;

B. The immediate closing of the food establishment until no further danger of disease outbreak exists in the opinion of the chief of environmental health;

C. Adequate medical examination of the owner, employee, and their coemployees, with such laboratory examination as may be indicated; or should such examination or examinations be refused, then the immediate exclusion of the refusing owner, employee or coemployee from that food establishment until an adequate medical or laboratory examination shows that they are not affected with or a carrier of any disease in a communicable form. (Ord. 4883-NS § 1 Exhibit A, Ch. 7 Art. 8 § 5, 1976)

In any food establishment, it shall be unlawful:

A. To dry-sweep or clean a floor in any manner that raises dust;

B. To store food or beverage in any refrigerator, ice box or other cooler or refrigeration device in such a manner so as to subject such food or beverage to the drip from ice, refrigerant or refrigeration coils;

C. To expectorate, sit, lie, or walk upon any surface which comes into direct contact with any food or beverage;

D. To use any utensil that is not clean or sanitary, or that is not constructed so as to prevent grease, oil or any other mechanical lubricant from contaminating food or beverage;

E. To store, keep or use any medications, or any dangerous drugs or substances, on or in refrigerators, on shelves, or in any other place where they may contaminate food or beverage;

F. To use cracked, chipped or corroded dishes, vessels or utensils;

G. To perform tonsorial services, shoe repairing, clothes cleaning, or any other business or activity giving rise to dust, dirt, foul odor or other matter that may contaminate food or beverage. (Ord. 4883-NS Exhibit A, Ch. 7 Art. 9 § 1, 1976)

No person, partnership, firm or corporation acting directly or through their agents, servants or employees shall offer or expose for sale or sell any raw milk products without first posting a warning sign as provided for in this section. The warning sign shall be posted immediately adjacent to any raw milk product offered or exposed for sale and shall be clearly visible to the patron at the point of sale. Such sign shall be not less than eight inches by eleven inches in size and shall be printed on a contrasting background and in a legible manner, conveying the following warning:

"WARNING: Raw milk products are not pasteurized and may contain organisms that cause human disease. They therefore should not be consumed by the very young; the very old; persons with illnesses which alter, or who take drugs which affect the immune systems; and persons with severe chronic medical problems."

The word "WARNING" shall be in a print of eighty-four point height and Helvetica type and the remainder of the text in a print of twenty-four point height and in Helvetica medium-face, Futura medium-face or Universe 65 type. (Ord. 5719-NS § 1, 1986)

A. Definitions: The definitions set forth in the California Health and Safety Code 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:

1. "Enforcement Agency" means the Environmental Health Division (EHD) of the Health, Housing, and Community Services Department (the Department).

2. "Microenterprise Home Kitchen Operator" means the Resident of a Private Home that is responsible for operation and permit.

3. "Resident of a Private Home" means an individual who primarily resides in that private home.

B. Restrictions and conditions:

1. Commercial retail food establishment equipment not intended for use in a residence must first be approved by the City of Berkeley Fire Marshall.

2. As specified in the California Retail Food Code regarding MHKOs, the number of meals served per day may be restricted based on the safe food storage and holding capacity of food ingredients that are to be prepared and served the same day.

3. EHD may request the assistance of a Berkeley Fire Department (BFD) Fire Inspector and conduct a re-inspection according to Cal Code section 114367.3(3) should the enforcement officer suspect a fire hazard exists.

C. Nuisances: Nuisances shall be abated according to BMC 1.24 and 1.26. In addition to the procedures outlined in BMC 1.24 and 1.26, failure to abate a nuisance may result in the suspension and/or revocation of the MHKO Operating Permit. In addition to any nuisance defined elsewhere in City ordinances or State laws, it shall be deemed a nuisance for a MHKO to:

1. Directly, or through customers and/or third-party delivery services, cause blockage and/or congestion on City thruways such that the duties of City agencies are impeded, including but not limited to maintenance, solid waste, and street sweeping, or that which results in repeated neighbor complaints by multiple neighbors, including parking congestion.

2. Store greases in such a manner as to be considered a fire hazard whether indoors or outdoors, or that which attracts vermin.

3. Dispose of greases into the municipal sewer system through a residential drain or toilet.

4. Cause a visible build-up of greases inside residential ventilation hoods and shafts, on walls, ceilings, rooftops, and/or other surfaces such that it may constitute a fire hazard or attract vermin.

5. Create nuisance smoke, odors, or noises in common areas, e.g. hallways, shared gathering areas, etc. such that multiple neighbors file complaints.

6. Operating an outdoor wood-burning oven or BBQ in a manner that may constitute a hazard, or that which creates nuisance smoke or odors to a neighboring residence.

7. Storing of refuse in an unsanitary manner or that which attracts vermin. Any refuse generated beyond the capacity of residential waste pickup shall be taken to a waste transfer facility or landfill by the MHKO Operator.

D. Permit.

1. No person shall operate MHKO without holding a valid operating permit issued by the Department. Application for a permit shall be made upon a form issued by the EHD and shall be accompanied by any fees established.

2. No person shall operate a MHKO without holding a valid business license per Berkeley Municipal Code 9.04.

E. Inspections.

1. The EHD shall inspect a MHKO upon the initial application, on an annual basis, due to a consumer complaint, or if there is reason to suspect that unsafe food has been produced. An inspection form provided by the EHD 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.

2. The EHD may seek cost recovery at the current EHD hourly rate with a minimum of two hours, if additional inspections or complaint investigations are required to ensure compliance with this ordinance and/or the California Retail Food Code.

The EHD may request the assistance of the BFD to asses any conditions suspected to be a fire hazard. Such inspections shall be considered an emergency inspection as defined in the California retail Food Code with regard to MHKO inspections. BFD may seek cost recovery for such inspections. (Ord. 7739-NS § 3, 2020)