Chapter 7.14 — MICROENTERPRISE HOME KITCHEN

OPERATIONS Section

• 7.14.001 Purpose and intent
• 7.14.002 Authority
• 7.14.003 Definitions
• 7.14.004 Permit requirements and permit fees
• 7.14.005 Suspension and revocation of permits
• 7.14.006 Operational requirements and prohibitions
• 7.14.007 Inspections
• 7.14.008 Enforcement

This chapter's purpose and intent are to allow 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. The provisions of this chapter shall apply to all microenterprise home kitchen operations within the unincorporated and incorporated areas of the county, as and to the extent permitted under Cal. Health and Safety Code § 114367. (Ord. 1046, § 1, 2022)

The Cal. Health and Safety Code Division 104, Part 7 (§§ 11370 et seq.), also referred to as the California Retail Food Code, provides statewide health and sanitation standards for retail food facilities. Assembly Bill 626 was passed on

September 18, 2018, adding to and amending sections of the Cal. Health and Safety Code relating to food safety. This chapter is adopted in accordance with Assembly Bill 626 and pursuant to the Board of Supervisors' police powers as set forth under § 7 of Article XI of the State Constitution. This chapter shall be administered and implemented by the Environmental Health Services division of the county Public Health Department. (Ord. 1046, § 2, 2022)

For the purposes of this chapter, the following terms have the following meanings: CRFC. The California Retail Food Code as codified in the Cal. Health and Safety Code §§ 113700 et seq., as it may be amended from time to time. DEPARTMENT. The county Public Health Department, Environmental Health Services division. ENFORCEMENT OFFICER. The Deputy Director of Public Health, their duly authorized designees, and any person appointed by the Deputy Director to enforce or administer this chapter. EQUIPMENT. Has the same meaning as that term is defined in Cal. Health and Safety Code § 113777. FOOD. Has the same meaning as that term is defined in Cal. Health and Safety Code § 113781. FOOD FACILITY. Has the same meaning as that term is defined in Cal. Health and Safety Code § 113789. FOOD HANDLER. A person who prepares, handles, packages, serves, or stores food, handles utensils, or assists another person in any of those tasks at a food facility. HSC. The California Health and Safety Code. LOCAL ENFORCEMENT AGENCY or THE LEA. The county Environmental Health Services Division and its designated employees and other designated agents. MICROENTERPRISE HOME KITCHEN OPERATION (MEHKO). As defined by Cal. Health and Safety Code § 113825, is a food facility with gross annual sales limits outlined in Cal. Health and Safety Code § 113825(a)(7), operated by a MEHKO operator and having not more than one full-time equivalent food employee, not including a family member or household member of the MEHKO operator, and conducted within the permitted area of a private home where the MEHKO operator resides and where microenterprise home kitchen foods are prepared or packaged for direct sales or delivery to consumers pursuant to Cal. Health and Safety Code § 113825(a)(3). MICROENTERPRISE HOME KITCHEN OPERATION OPERATOR. The resident of the private home who holds the permit for the MEHKO and is responsible for its operation. PERMIT. A document issued by the LEA that authorizes a person to operate a MEHKO. PERMIT HOLDER. The entity that is legally responsible for the microenterprise home kitchen operation, such as the owner, the owner's agent, or other person, and that possesses a permit to operate a MEHKO. PERMITTED AREA. A private home kitchen described and authorized in the permit for the MEHKO, onsite 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. Any other detached rooms on the premises, including accessory buildings and garages, may be used to store food items only if all food is stored inside an approved refrigerator and/or freezer with a closable door/lid. Sleeping quarters or second units are not included as a permitted area. PERSON. Has the same meaning as that term is defined in Cal. Health and Safety Code § 113855, as that section may be amended from time to time. POTABLE WATER. Water that complies with the standards of transient non-community water systems pursuant to the California Safe Drinking Water Act, commencing with Cal. Health and Safety Code § 116270 to the extent permitted by federal law. RESIDENT OF A PRIVATE HOME. An individual who resides in the private home when not elsewhere for labor or other unique or temporary purposes. TABLEWARE. Has the same meaning as that term is defined in Cal. Health and Safety Code § 113926. UTENSIL. Has the same meaning as that term is defined in Cal. Health and Safety Code § 113934. (Ord. 1046, § 3, 2022)

(A) No person shall conduct, operate, or open a MEHKO unless the person has obtained a health permit issued by the LEA, and such permit remains valid. A permit issued by the LEA shall remain valid for one calendar year from the date of issuance of the permit and shall require annual renewal provided, however, no permit shall remain valid after this chapter expires. All applicants for a permit and permit holders seeking renewal of an existing permit shall submit an application

accompanied by such materials as required by the LEA and the applicable permit fees paid. The permit application for any MEHKO permit shall, at a minimum, include the following: (1) A completed MEHKO application provided by the LEA. (2) Written standard operating procedures for the MEHKO as described in the CRFC of Cal. Health and Safety Code § 114367.2(c), as such section may be amended from time to time; and (3) Proof acceptable to the LEA that the applicant has successfully completed an approved and accredited food safety certification course and passed an approved and accredited food safety certification examination, as specified in the CRFC of Cal. Health and Safety Code § 113947.1, as such section may be amended from time to time. (B) Initial inspection before permit issuance. The LEA shall issue an initial permit only after the LEA has conducted an initial inspection of the proposed MEHKO location and determined that the proposed MEHKO and its method of the operation comply with CRFC of Cal. Health and Safety Code Chapter 11.6. The LEA will contact each permit applicant to schedule an initial inspection of the proposed MEHKO once the LEA has confirmed that the applicant has submitted an application in conformance with the requirements set forth in this section. (C) A MEHKO permit shall be valid for one calendar year from the date of issue and may be renewed annually and is not transferable. Permit holders shall not transfer permits to any other person or to operations at any other place. A permit is only valid for the person and place specified in the permit and for the period indicated therein (unless the permit is suspended or revoked for cause). (D) MEHKO permits may be modified, suspended, or revoked as provided in the CRFC. (E) Prominent display. Permits must be prominently displayed on the site of the MEHKO during all hours of operation. (F) The applicant shall obtain a business license from the jurisdiction where MEHKO activities will occur if the jurisdiction requires a business license. (G) Financial compliance. The LEA shall not approve an application for a new permit or renewal of an existing permit until the permit holder has paid all applicable fees, outstanding fees, and administrative fines that the permit holder owes to the LEA. (1) Annual permit. Actual cost at an hourly rate of $110. This fee covers annual inspections; (2) Plan check. Actual cost at an hourly rate of $110. This fee covers the initial plan check and addresses any MEHKO changes, facility remodel, or menu changes. (H) The annual permit and plan check fee listed in this section shall be valid until the county master fee schedule is revised to incorporate this new fee therein, or chapter expiration. Before incorporating these new fees into the county master fee schedule, a time/cost accounting study will be completed to ensure that the proposed fee is adequate, fair, or adjusted accordingly. Once the county master fee schedule has been updated, the fee listed in this section shall be void, and the fee in the county master fee schedule shall be the valid fee. Any annual permit shall be valid until the end of the calendar year in which it is obtained, or the expiration of this chapter. (Ord. 1046, § 4, 2022)

(A) Grounds. The LEA may suspend or revoke a permit if the LEA determines that information submitted in connection with an application for a permit or to renew a permit was materially false or that information material to the permit application or application to renew a permit was misrepresented, withheld, or concealed, in addition to failure to comply with the requirements of the CRFC. (B) Notice of suspension or revocation. The LEA may initiate the suspension or revocation of a permit by either of the two actions: on the site of a MEHKO in an LEA inspection report; or issuance by the LEA of a notice of violation, which sets forth in clear and concise language the acts or omissions with which the permit holder is charged and informs the permit holder of their right to a hearing, if requested, to show cause why the permit should not be suspended or revoked. Regardless of the method used to initiate the suspension or revocation of a permit, the LEA shall send to permit holder by certified mail, a copy of the notice document, and the permit holder shall be afforded an opportunity for a hearing and the written notice that the LEA provides to permit holder shall describe permit holder's hearing rights, in accordance with the CRFC of Cal. Health and Safety Code § 114405, as this section may be amended from time to time. (C) Reinstatement of permit; issuance of new permit. A permit may be reinstated, or a new permit issued if the LEA determines that the conditions that prompted the suspension or revocation no longer exist. (D) Evidence. The following rules shall apply to any hearing required by this chapter. Any hearing that takes place pursuant to this chapter shall be conducted in accordance with the provisions of the CRFC of Cal. Health and Safety Code § 114405, as this section may be amended from time to time. All parties shall have the right to offer a relevant testimonial, documentary, and tangible evidence bearing on the issues. Formal rules of evidence and discovery do not apply to proceedings governed by this chapter. Unless otherwise specifically prohibited by law, at a hearing conducted under this chapter, the LEA shall have the burden to establish the existence of a violation of the CRFC by the permit holder, and thereafter, the permit holder shall have the burden to establish why the permit holder's permit should not be suspended or

revoked, whichever is applicable. (E) Written notice of decision. If the permit holder requests a hearing in accordance with the procedures set forth in Cal. Health and Safety Code § 114405, the Hearing Officer shall issue a written notice of a decision to the permit holder in accordance with Cal. Health and Safety Code § 114407, as this section may be amended from time to time. The Hearing Officer's written notice of decision shall be a final administrative order, with no further administrative right of appeal or reconsideration. The Hearing Officer may sustain a suspension or revocation, overrule a suspension or revocation, reduce a revocation to a suspension and/or reduce the length of a suspension. Further, the Hearing Officer may stay the effective date of any suspension for a reasonable time following a hearing. (F) Closure of operation; re-application. Any MEHKO for which the permit has been suspended shall close and remain closed until the permit has been reinstated. Any MEHKO for which the permit has been revoked shall close and remain closed until a new permit has been issued. No re-application will be accepted within one year after a permit is revoked. (Ord. 1046, § 5, 2022)

Consistent with, and in addition to, the operational requirements and exemptions set forth in Cal. Health and Safety Code §§ 114367 et seq., a MEHKO shall comply with all the following: (A) The MEHKO operator shall successfully pass an approved and accredited Food Safety Certification Examination, in compliance with Cal. Health and Safety Code § 113947.1, and shall submit proof of certification with the permit application for a MEHKO operation. (B) Any person(s) participating in the MEHKO shall obtain a Food Handler Certification within ten days of such participation as specified in Cal. Health and Safety Code § 113948. (C) All MEHKO food must be stored, prepared, packaged, transported, kept for sale, and served to be pure and free from adulteration and spoilage and protected from contamination. (D) All food storage within the permitted area shall comply with CRFC of Cal. Health and Safety Code Chapter 4, Article 5. Any other detached rooms on the premises, including accessory buildings and garages, may be used to store food items only if all food is stored inside an approved refrigerator and/or freezer with a closable door/lid. Sleeping quarters or second units are not included as a permitted area. (E) Only one MEHKO may operate per residence. (F) No MEHKO 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. (G) Other than service animals, as defined in the Code of Federal Regulation Title 28, § 35.104, all animals shall be excluded from the kitchen and dining areas during food service and preparation. (H) Equipment and utensils used to produce MEHKO food shall be smooth, easily cleanable, and maintained in a good state of repair. (I) All food contact surfaces, equipment, and utensils used for the preparation, packaging, or handling of any MEHKO food shall be washed, rinsed, and sanitized before each use. (J) All MEHKO potentially hazardous food must be stored and transported with proper internal food temperatures. (K) 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. (L) No preparation, packaging, storage, or handling of MEHKO food and related ingredients and/or equipment shall occur outside the permitted area. (M) A person with a contagious illness shall not work in the MEHKO. (N) A person involved in the preparation or packaging of MEHKO food shall keep their hands and exposed portions of their arms clean and properly wash their hands before any food preparation or packaging activity. (O) Water used during the preparation of MEHKO food products shall meet potable drinking water standards. MEHKO operators whose potable water supply comes from a private well shall submit with their permit application sample results verifying the water supply meets at minimum a "transient noncommunity water system" standard, as defined in Cal. Health and Safety Code § 116275(o). Sample results shall include nitrate, nitrite, bicarbonate, sodium, total hardness, and bacteriological water quality. (P) The private sewage disposal system must be adequate for the additional liquid waste. (Q) No signage or other outdoor displays advertising the MEHKO are allowed. (R) All MEHKO food shall be prepared, cooked, and served on the same day. (S) MEHKO food shall be consumed offsite if the food is picked up or delivered to the consumer. The sale of MEHKO

food through an internet food service intermediary is a direct sale. The MEHKO cannot provide food to any wholesaler or retailer for resale and is not a cottage food operation as defined in Cal. Health and Safety Code § 113758, nor a catering operation as defined in Cal. Health and Safety Code § 113739.1(a). (T) A person who delivers food on behalf of a MEHKO shall be an employee, family member, or household member of the MEHKO operator. (U) Only state Department of Public Health-approved internet food service intermediaries may be used. (V) MEHKO may not engage in food processes that would require a HACCP plan as specified in Cal. Health and Safety Code § 114419, or produce, serve, or sell raw milk or raw milk products as defined in Cal. Code of Regulations Title 17 § 11380, 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 MEHKO but shall not, in any case, increase the limit of the number of individual meals prepared. (X) The MEHKO has no more than $50,000 in verifiable gross annual sales, as adjusted annually for inflation based on the state Consumer Price Index. (Y) For MEHKO with cooking equipment, a properly charged and maintained minimum of ten BC-rated fire extinguishers to combat grease fires shall be readily accessible. A first aid kit shall be provided and located in a convenient, accessible area. (Z) Special accommodations may be required during a public health emergency. (Ord. 1046, § 6, 2022)

(A) The LEA may conduct inspections of a MEHKO consistent with the CRFC of Cal. Health and Safety Code § 114367.3. (B) If an applicant refuses to allow an inspection or is otherwise unable to allow an inspection within a reasonable time, permits may be denied, revoked, or placed on hold. (Ord. 1046, § 7, 2022)

Notwithstanding the remedies outlined in Cal. Health and Safety Code §§ 114390, 114405, and 114409, the department reserves the right to issue administrative citations in accordance with Cal. Gov’t Code § 53069.4. An administrative citation may be issued for any violation of this chapter. 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 way the conditions of the MEHKO violate the provisions of this chapter and the corrective actions required to correct the condition or conduct. The notice shall also state that failure to come into compliance with this chapter could subject the registrant or permittee of the MEHKO 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 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 citation. (1) If the registrant, permittee or other person who has violated the chapter 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 chapter 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 chapter. The citation shall be mailed to the property address and/or the address listed for the owner. (3) The failure of any interested person to receive the citation shall not affect the validity of the proceedings. (D) Administrative penalties. (1) The penalties assessed for each violation shall not exceed the following amounts, pursuant to § 1.04.005(A): (a) $100 for a first violation. (b) $200 for a second violation of the same chapter within one year; and (c) $500 for each additional violation of the same chapter 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. (5) Penalties assessed pursuant to this section shall be in addition to the recovery of costs representing staff time necessary for the investigation of violations of this chapter and/or its enforcement. (E) 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 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 support his or 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 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 or the county Hearing Officer. The Hearing Officer shall not be the enforcement officer who issued the administrative citation or their immediate supervisor or subordinate. The Board of Supervisors or the county Hearing Officer may contract with a qualified provider to conduct administrative hearings or to process administrative citations. (3) 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. (4) 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 a review of the decision by the superior court. (5) Review of administrative Hearing Officer's decision. (a) Notice of appeal. Within 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 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. (b) 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 15 days of the request. (c) Judgment. The court shall retain the 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. 1046, § 8, 2022)