CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 377

Author:(Eduardo Garcia and Mayes)

As Amended Ver:August 21, 2019

2/3 vote. Urgency

SUMMARY:

Authorizes counties and/or cities within their jurisdictions to permit Microenterprise Home Kitchen Operations (MEHKO). Clarifies the inspection requirements for MEHKOs and other confirming changes. Clarifies regulations for MEHKO permit holders. Contains an urgency clause to make the provisions of this bill effective immediately upon enactment.

The Senate Amendments:

1. Add language to permit food prepared by a MEHKO to be delivered using a third party food delivery service only if an individual has a physical or mental disability that limited that individual's access to food without the assistance of a third party delivery service.
2. Require a MEHKO to keep records of the number and dates of food deliveries made pursuant to 1). Requires a MEHKO or an internet intermediary to make the record available to Local Environmental Health Directors at any inspection.
3. Require a MEHKO to clearly post on its website or mobile application the provision specified in 1) above.

COMMENTS:

Local Environmental Health Directors have primacy in the enforcement of the California Retail Food Code (CRFC) and focus their food facility inspections on minimizing food-borne illness risk factors and maximizing public health interventions.

• 1. Authorization of MEHKO. Since the passage of AB 626 (Eduardo Garcia), Chapter 470, Statutes of 2017, no jurisdictions have 'opted in' to allow MEHKO permits to be issued. According to the author as well as a coalition comprising of the California Conference of Directors of Environmental Health, the Health Officers Association, and the County Health Executives Association of California this is largely because the jurisdictional authority in existing law was unclear and thus no cities and/or counties have opted in to permit MEHKOs.
  2. Inspections of MEHKO. MEHKO regulations are enforced by local health officers and are subjected to inspections, similar to all other types of food facilities. Under current law, MEHKO food facilities are subjected to one routine inspection annually. Unlike other types of food facilities, in lieu of a public health emergency, enforcement agencies cannot, under current law, conduct more than one routine inspection and additionally must give 'reasonable advanced notice' of the routine inspection. Given that MEHKOs are operated out of private residences and thus hours are more flexible and subject to change this bill makes several changes to the inspection regulation of MEHKO. This bill clarifies that there are three types of inspections MEHKO will be subject to including routine, investigational, and emergency.
  3. Public Health Considerations. According to the Center for Disease Control (CDC), an estimated 48 million people get sick from food borne illnesses every year, with 128,000 of these individuals hospitalized and 3,000 die. The top five food borne illnesses in the United States are Norovirus, Salmonella, Clostridium, Perfingens, Camylobacter, and Staphylococcus aureus. Additionally, germs such as Escheria coli (E.coli), Clostridium botulinum (botulism), Listeria, and Vibrio are less common, but lead to the most dire consequences such as hospitalization and death in some more vulnerable individuals. According to the CDC, over half of all food borne illnesses arise from contamination that occurs during food preparation/handling. This bill makes clarifications to the inspections of MEHKO that to permit inspections to occur outside of business hours. It is reasonable, since the MEHKO functions also as a private home to exempt these food facilities from unannounced visits so as to protect their privacy, however, since one of the main public health concerns for these operations is the food preparations, there could be unintended risk associated with the possibility of conducting inspections when a MEHKO is not operating, as unsafe handling and/or storage practices would not be observed and can be missed leading to potential public health threats.
  4. Internet Intermediaries and Delivery Services. Many restaurants in the U.S., including those in California, use a variety of internet services and platforms in order to expand their access to customers and increase the efficiency of their businesses. Internet intermediaries are platforms that provide internet services, for example, a business can use an internet intermediary to facilitate the billing transactions of their sales. For example, a MEHKO permitholder can use internet services to solicit orders and complete the transactions. Under current law these transactions are legal for MEHKO permitholders to utilize.

This bill also clarifies that an internet intermediary cannot intentionally use third-party food delivery systems to handle the food prepared by the MEHKO permitholder unless an individual has a documented physical or mental disability that limits a customers access to food without the assistance of a third party food delivery service.

According to the Author:

According to the author, this bill addresses several questions and concerns that have been raised in response to the bill that created MEHKOs in statute, AB 626 warrants clarification in the law. These changes will help ensure that the requirements of legislation are clearly understood across all stakeholders, easing the process of implementation so California can take advantage of this exciting new entrepreneurship opportunity.

Arguments in Support:

According to County Health Executives Association of California, provisions related to CRFC-exempted requirements and activities included in this bill provide greater protections to consumers and the general public. These provisions better conform to best practices in food handling, food safety, and prevention of contamination. The language of this bill around local enforcement agency inspection circumstances will also provide the ability for local health and environmental health departments to conduct necessary and timely inspection activities in order to protect consumers and the public.

Arguments in Opposition:

A number of cities, including the City of Vista and the City of West Hollywood, write in opposition to this bill with concerns about authorizations of permits, zoning, and wastewater systems management.

FISCAL COMMENTS:

According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state cost.

VOTES:

ASM HEALTH: 13-1-1

YES: Wood, Mayes, Aguiar-Curry, Bigelow, Bonta, Burke, Wicks, Flora, McCarty, Nazarian, Ramos, Rodriguez, Santiago

NO: Waldron

ABS, ABST OR NV: Limón

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Jones-Sawyer, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

ASSEMBLY FLOOR: 74-0-6

YES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Arambula, Boerner Horvath, Limón, Mullin, Quirk, Waldron

SENATE FLOOR: 30-8-2

YES: Allen, Archuleta, Beall, Borgeas, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

NO: Bates, Grove, Jones, Moorlach, Morrell, Nielsen, Stone, Wilk

ABS, ABST OR NV: Atkins, Dahle

UPDATED:

VERSION: August 21, 2019

CONSULTANT: Marissa Kraynak / HEALTH / (916) 319-2097 FN: 0002065

 THIRD READING  

Bill No: AB 377

Author: Eduardo Garcia (D) and Mayes (R)

Amended: 8/21/19 in Senate

Vote: 27 - Urgency

SENATE HEALTH COMMITTEE: 7-2, 6/19/19

AYES: Pan, Lena Gonzalez, Hurtado, Leyva, Mitchell, Monning, Rubio

NOES: Stone, Grove

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 74-0, 5/2/19 - See last page for vote

SUBJECT: Microenterprise home kitchen operations

SOURCE: Author

DIGEST:

This bill clarifies provisions of law governing the authorization and regulation of microenterprise home kitchens (MHKs), including clarifying that only a county or one of four cities with an environmental health department can authorize MHKs, and if authorized by one of these jurisdictions, they are permitted in all areas of those jurisdictions.

ANALYSIS:

Existing law:

1. Establishes the California Retail Food Code (CalCode) to provide for the regulation of retail food facilities. Health and sanitation standards are established at the state level through the CalCode, while enforcement is charged to local agencies, carried out by the 58 county environmental health departments, and four city environmental health departments (Berkeley, Long Beach, Pasadena, and Vernon). [HSC §113700, et seq.]
2. Defines a “food facility” as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level. Excludes various entities from the definition of a “food facility,” including a cottage food operation, and a church, private club, or other nonprofit association that gives or sells food to its members and guests, and not to the general public, at an event that occurs no more than three days in any 90-day period. [HSC §113789]
3. Defines an “MHK” as a food facility that is operated by a resident in a private home where food is stored, handled, and prepared for, and may be served to, consumers, and that meets certain requirements, including limiting food preparation to no more than 30 meals per day, and no more than 60 meals per week, and no more than $50,000 in annual gross sales. [HSC §113825]
4. Provides the governing body of a city or county with full discretion to authorize, by ordinance or resolution, the permitting of MHKs, and requires a permit issued by a county that has authorized the permitting of MHK operations to 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 MHKs within that city. [HSC §114367]
5. Exempts an MHK from a number of requirements of a restricted food service facility, including: provisions relating to sinks, warewashing machines, and manual or machine sanitation, as long as the sink in an MHK has hot and cold water; limitations on consumer access to the food facility; requirements pertaining to the characteristics and construction of food contact surfaces and clean-in-place equipment; limitations on the use of wood as a food contact surface; requirements relating to ventilation; and, limitations on the presence and handling of animals, as long as all animals other than service animals are kept out of the kitchen and dining room during food preparation and service. [HSC §114367.1]
6. Prohibits an MHK, after the initial inspection, from being subject to routine inspections, except that a local enforcement agency representative may inspect the permitted area of an MHK after providing reasonable advance notice, or when the local enforcement agency, on the basis of a consumer complaint, has a valid reason to suspect that unsafe food has been produced or served by the MHK, or that the MHK has otherwise been in violation of this bill. Prohibits an MHK from being subject to more than one inspection each year by the local enforcement agency, except on the basis of a consumer complaint. [HSC §114367.3]
7. Prohibits a city or county from imposing restrictions on MHKs for zoning purposes. Requires an MHK to be a permitted use of a residential property in any residential dwelling for zoning purposes as long as the MHK abstains from posting signage or other outdoor advertising displays, and is in compliance with applicable local noise ordinances. Specifies that these provisions do not supersede or otherwise limit the investigative and enforcement authority of the city or county with respect to violations of its nuisance ordinances. [HSC §114367.4]

This bill:

1. Clarifies the provision of law governing the authorization of MHKs by cities or counties that are designated as an enforcement agency for CalCode, by specifying that if the city or county authorizes the permitting of MHK operations, the authorization applies to all areas within its jurisdiction, including all cities within a county.
2. Prohibits an MHK from engaging in the production, manufacturing, processing, freezing, or packaging of milk or milk products, including ice cream, yogurt, sour cream, and butter.
3. Clarifies the warewashing requirements that apply to MHKs, including ensuring MHKs comply with specified final sanitizing rinses, and that if a dishwasher is used, it is to be operated in accordance with the manufacturer’s specifications.
4. Requires the MHK, with regard to the exemptions that allow people unnecessary to the operation of the food facility access to the food preparation areas, to take steps to avoid any potential contamination to food or equipment, and that people with symptoms associated with gastrointestinal illness or known to be infected with a communicable disease transmissible through food are prevented from entering the food preparation area.
5. Requires service animals, in addition to all other animals, to be kept outside of the kitchen of an MHK during food service and preparation.
6. Limits an MHK to only selling food that was prepared during a food demonstration or preparation event to a consumer who was present at the food demonstration or food preparation event.
7. Repeals a provision of law that requires, when multiple local agencies are involved in the issuance of any type of permit, license, or other authorization to an MHK operation, that the local enforcement agency designate one lead local agency with the sole authority to accept all applications for, and collect all fees for, any permit, license or other authorization for an MHK.
8. Revises and recasts the provisions of MHK law related to inspections by a local enforcement agency by specifying that an MHK is only subject to the following three types of inspections by the enforcement agency:
   1. A routine inspection, which requires the enforcement agency to provide notice and conduct the inspection at a mutually agreeable date and time. Limits routine inspections to no more than one within a 12-month period;
   2. An investigation inspection, based on just cause that unsafe food has been produced or served or that the MHK has violated the law. Specifies that one or more consumer complaints may constitute just cause, and requires advance notice and a mutually agreeable date and time for the inspection; and,
   3. An emergency inspection, when the enforcement agency has just cause that the MHK poses a serious hazard or immediate threat. Requires prior notice to the extent that notice is reasonable under the circumstances, and requires the scope of an emergency inspection to be limited in duration and scope to address the facts giving just cause that the MHK poses a serious hazard or immediate threat to public health.
9. Clarifies that food produced in an MHK is prohibited from being delivered by a third-party delivery service, except to an individual who has a physical or mental disability that limits their ability to access the food without the assistance of a third-party delivery service. Establishes requirements for an MHK that facilitates deliveries to disabled individuals, including maintaining records of such food deliveries, and posting on its website that third-party delivery is prohibited except to disabled individuals.
10. Prohibits an internet food service intermediary that lists or promotes an MHK operation from using, or knowingly facilitating the use of, a third-party delivery service for food produced by the MHK operation, except as permitted by this bill for disabled individuals.
11. Prohibits an MHK from using the word “catering” in an advertisement. Prohibits an Internet food service intermediary that lists or promotes an MHK operation from using the word “catering” or any variation of that word in a listing or publication of an MHK operation’s offer of food for sale.
12. Requires an MHK that advertises to the public, including by Web site, Internet, social media platform, newspaper, or other public announcement, to include all of the following within the advertisement: the name of the enforcement agency that issued the permit; the permit number; and, a statement that the food is “Made in a Home Kitchen” in a clear and conspicuous font, or in an audible and comprehensible manner in a verbal advertisement.
13. Makes various other minor changes and clarifications to provisions of law relating to MHKs.
14. Contains an urgency clause that will make this bill effective upon enactment.

Background

1. Status of implementation, and who gets to authorize MHKs. AB 626 established a regulatory structure for MHKs. The intent of the author was to establish a legal way for home cooks to benefit from their labor and skills and promote economic development in vulnerable communities where the sale of homemade food is popular. The general structure of AB 626 was to enact a permitting process that would be overseen by the same local health agencies that oversee fully-permitted restaurants, but to exempt these MHKs from requirements that would be difficult to meet in a home kitchen, such as sinks with multiple compartments and multiple drainboards, requirements related to the floor, wall and counter material, special plumbing requirements, limitations on who could be in the food preparation area, etc.
   
   AB 626 required jurisdictions to opt-in in order to authorize MHKs in any given area. There are 62 local environmental health agencies that enforce the CalCode in their respective jurisdictions (the 58 counties, plus the cities of Berkeley, Long Beach, Pasadena, and Vernon). Currently, Riverside County is the only jurisdiction that has opted in and authorized MHKs. However, according to the author and various supporters of this bill, one of the reasons some jurisdictions have not opted in is because they believe the provisions of AB 626 detailing the local authorization process is unclear. While the intent of the author was to ensure that only the 58 counties and the four cities with an environmental health department could make the decision as to whether to opt-in and authorize MHKs, and that if any county did so it would be effective in all parts of that county, the law specified that the “governing body of a city or county, or city and county, shall have full discretion to authorize” the permitting of MHK operations. This raised the question as to whether individual cities could opt out even if their county opted in. Therefore, this bill changes this language so that it permits the “governing body of a city, county, or city and county that is designated as the enforcement agency” to authorize the permitting of MHK operations. This makes it clear that it only applies to the four cities with an environmental health department, along with the 58 counties. This bill also makes clear that any authorization applies to all areas within the jurisdiction of the authorizing city or county.

Comments

1. Author’s statement. According to the author, AB 626 (Garcia, Chapter 470, Statutes of 2018) created MHK operations in the code and established the requirements needed to protect cooks and public health. However, as with many complex bills, several questions and concerns have been raised since the bill was chaptered that warrant clarification in the law. These technical changes will help ensure that the requirements of legislation are clearly understood across all stakeholders, easing the process of implementation so Californians can take advantage of this exciting new entrepreneurship opportunity.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 9/5/19)

C.O.O.K. Alliance

California Association for Micro Enterprise Opportunity

California Association of Environmental Health Administrators

City of Fullerton

County Health Executives Association of California

Health Officers Association of California

OPPOSITION: (Verified 8/26/19)

California Department of Public Health

City of Fountain Valley

City of Paramount

City of South Pasadena

City of Stanton

City of West Hollywood

Valley Center Municipal Water District

ARGUMENTS IN SUPPORT: The C.O.O.K. Alliance states in support that since the passage of AB 626, it has been working with counties interested in implementing the law, but confusion around issues of jurisdiction and public health requirements has significantly slowed implementation in many counties, effectively blocking this new opportunity for thousands of cooks. The C.O.O.K. Alliance states this bill will allow for easier, safer adoption of AB 626, allowing home cooks to use their skills to generate income. The California Association of Environmental Health Administrators (CAEHA) states in support that this bill addresses several of the implementation concerns that environmental health directors and local health officers had with AB 626 when it was enacted last year. CAEHA states that while these changes do not fully address all of their implementation concerns, nor do they dispel their fundamental discomfort with tehsil and service of food to the public that has been prepared in private homes, they are confident that this bill is in the collective best interest. The Health Officers Association of California (HOAC) states that first and foremost, this bill clarifies that the appropriate level of government to establish these operations is the county government, which oversees both public health and environmental health, or a city that has the required enforcement agency. HOAC states that this bill also codifies important changes recommended by local environmental health directors, such as ensuring that animals are not present in the kitchen during food service hours, that only appropriate wooden surfaces are used for food contact, and enact numerous other changes vital to protecting consumers. The County Health Executives Association of California states that while it opposed AB 626 last year, it has engaged over the last several months with the author’s office and other stakeholders to clarify provisions to more effectively implement MHKs and attempt to better protect the public’s health and safety. The California Association for Micro Enterprise Opportunity states in support that legalizing home cooking has wide support across California, and that supporters are excited to embrace this opportunity but are frustrated that issues of jurisdiction and public health requirements have slowed implementation.

ARGUMENTS IN OPPOSITION: A number of cities have written in opposition to this bill, primarily to the provision of this bill clarifying that only the 58 counties and the four cities with an environmental health department have the ability to determine whether or not to permit MHK operations. According to the City of South Pasadena, its concerns start with AB 626 and its problematic ambiguities with respect to local authority. The City of South Pasadena points out that AB 626 granted cities and counties alike “full discretion” over the permitting of MHKs in their jurisdiction, while also providing that if a county permits them, a city has no authority to disallow them. The City of South Pasadena states it is alarmed that this bill clarifies this ambiguity in favor of preemption at the expense of cities’ constitutional autonomy over matters of land use. According to the City of South Pasadena, for nearly a century, courts have held that zoning and land use are “intensely local areas of the law” subject to a city’s police powers. The City of South Pasadena understands that not all home businesses conflict with residential uses, but this determination of compatibility has long been entrusted with local officials. The City of West Hollywood makes similar comments in opposition. The City of Paramount argues in opposition that this bill erodes its ability to maintain the integrity of its residential zones, and that MHKs will introduce harmful impacts on neighborhoods, such as additional traffic, demand for on-street parking, noise from business patronage, and potential fire hazards. The Valley Center Municipal Water District states in opposition that this bill will allow the operation of MHKs in residential neighborhoods, thus raising a host of issues associated with the disposal of fats, oils and grease into the wastewater systems.

ASSEMBLY FLOOR: 74-0, 5/2/19

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Arambula, Boerner Horvath, Limón, Mullin, Quirk, Waldron

Prepared by: Vincent D. Marchand / HEALTH / (916) 651-4111

9/5/19 13:55:32

**** END ****

SENATE COMMITTEE ON HEALTH

Senator Dr. Richard Pan, Chair

BILL NO: AB 377

SUBJECT: Microenterprise home kitchen operations

SUMMARY:

Clarifies provisions of law governing the authorization and regulation of microenterprise home kitchens (MHKs), including clarifying that only a county or one of four cities with an environmental health department can authorize MHKs, and if authorized by one of these jurisdictions, they are permitted in all areas of those jurisdictions.

Existing law:

1. Establishes the California Retail Food Code (CalCode) to provide for the regulation of retail food facilities. Health and sanitation standards are established at the state level through the CalCode, while enforcement is charged to local agencies, carried out by the 58 county environmental health departments, and four city environmental health departments (Berkeley, Long Beach, Pasadena, and Vernon). [HSC §113700, et seq.]
2. Defines a “food facility” as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level. Excludes various entities from the definition of a “food facility,” including a cottage food operation, and a church, private club, or other nonprofit association that gives or sells food to its members and guests, and not to the general public, at an event that occurs no more than three days in any 90 day period. [HSC §113789]
3. Defines an “MHK” as a food facility that is operated by a resident in a private home where food is stored, handled, and prepared for, and may be served to, consumers, and that meets certain requirements, including limiting food preparation to no more than 30 meals per day, and no more than 60 meals per week, and no more than $50,000 in annual gross sales. [HSC §113825]
4. Provides the governing body of a city or county with full discretion to authorize, by ordinance or resolution, the permitting of MHKs, and requires a permit issued by a county that has authorized the permitting of MHK operations to 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 MHKs within that city. [HSC §114367]
5. Exempts an MHK from a number of requirements of a restricted food service facility, including: provisions relating to sinks, warewashing machines, and manual or machine sanitation, as long as the sink in an MHK has hot and cold water; limitations on consumer access to the food facility; requirements pertaining to the characteristics and construction of food contact surfaces and clean-in-place equipment; limitations on the use of wood as a food contact surface; requirements relating to ventilation; and, limitations on the presence and handling of animals, as long as all animals other than service animals are kept out of the kitchen and dining room during food preparation and service. [HSC §114367.1]
6. Prohibits an MHK, after the initial inspection, from being subject to routine inspections, except that a local enforcement agency representative may inspect the permitted area of an MHK after providing reasonable advance notice, or when the local enforcement agency, on the basis of a consumer complaint, has a valid reason to suspect that unsafe food has been produced or served by the MHK, or that the MHK has otherwise been in violation of this bill. Prohibits an MHK from being subject to more than one inspection each year by the local enforcement agency, except on the basis of a consumer complaint. [HSC §114367.3]
7. Prohibits a city or county from imposing restrictions on MHKs for zoning purposes. Requires an MHK to be a permitted use of a residential property in any residential dwelling for zoning purposes as long as the MHK abstains from posting signage or other outdoor advertising displays, and is in compliance with applicable local noise ordinances. Specifies that these provisions do not supersede or otherwise limit the investigative and enforcement authority of the city or county with respect to violations of its nuisance ordinances. [HSC §114367.4]

This bill:

1. Clarifies the provision of law governing the authorization of MHKs by cities or counties that are designated as an enforcement agency for CalCode, by specifying that if the city or county authorizes the permitting of MHK operations, the authorization applies to all areas within its jurisdiction, including all cities within a county.
2. Clarifies the warewashing requirements that apply to MHKs, including ensuring MHKs comply with specified final sanitizing rinses, and that if a dishwasher is used, it is to be operated in accordance with the manufacturer’s specifications.
3. Requires the MHK, with regard to the exemptions that allow people unnecessary to the operation of the food facility access to the food preparation areas, to take steps to avoid any potential contamination to food or equipment, and that people with symptoms associated with gastrointestinal illness or known to be infected with a communicable disease transmissible through food are prevented from entering the food preparation area.
4. Requires service animals, in addition to all other animals, to be kept outside of the kitchen of an MHK during food service and preparation.
5. Limits an MHK to only selling food that was prepared during a food demonstration or preparation event to a consumer who was present at the food demonstration or food preparation event.
6. Repeals a provision of law that requires, when multiple local agencies are involved in the issuance of any type of permit, license, or other authorization to an MHK operation, that the local enforcement agency designate one lead local agency with the sole authority to accept all applications for, and collect all fees for, any permit, license or other authorization for an MHK.
7. Revises and recasts the provisions of MHK law related to inspections by a local enforcement agency by specifying that an MHK is only subject to the following three types of inspections by the enforcement agency:
   1. A routine inspection, which requires the enforcement agency to provide notice and conduct the inspection at a mutually agreeable date and time. Limits routine inspections to no more than one within a 12 month period;
   2. An investigation inspection, based on just cause that unsafe food has been produced or served or that the MHK has violated the law. Specifies that one or more consumer complaints may constitute just cause, and requires advance notice and a mutually agreeable date and time for the inspection; and,
   3. An emergency inspection, when the enforcement agency has just cause that the MHK poses a serious hazard or immediate threat. Requires prior notice to the extent that notice is reasonable under the circumstances, and requires the scope of an emergency inspection to be limited in duration and scope to address the facts giving just cause that the MHK poses a serious hazard or immediate threat to public health.
8. Clarifies that food produced in an MHK is prohibited from being delivered by a third-party delivery service. Prohibits an internet food service intermediary that lists or promotes an MHK operation from using, or knowingly facilitating the use of, a third-party delivery service for food produced by the MHK operation.
9. Prohibits an MHK from using the word “catering” in an advertisement. Prohibits an internet food service intermediary that lists or promotes an MHK operation from using the word “catering” or any variation of that word in a listing or publication of an MHK operation’s offer of food for sale.
10. Requires an MHK that advertises to the public, including by website, internet, social media platform, newspaper, or other public announcement, to include all of the following within the advertisement: the name of the enforcement agency that issued the permit; the permit number; and, a statement that the food is “Made in a Home Kitchen” in a clear and conspicuous font, or in an audible and comprehensible manner in a verbal advertisement.
11. Makes various other minor changes and clarifications to provisions of law relating to MHKs.
12. Contains an urgency clause that will make this bill effective upon enactment.

FISCAL EFFECT:

According to the Assembly Appropriations Committee, there is negligible fiscal impact. Permitting is locally enforced and supported by local fees.

COMMENTS:

1. Author’s statement. According to the author, AB 626 (Garcia, Chapter 470, Statutes of 2018) created MHK operations in the code and established the requirements needed to protect cooks and public health. However, as with many complex bills, several questions and concerns have been raised since the bill was chaptered that warrant clarification in the law. These technical changes will help ensure that the requirements of legislation are clearly understood across all stakeholders, easing the process of implementation so Californians can take advantage of this exciting new entrepreneurship opportunity.
2. Background, status of implementation, and who gets to authorize MHKs. AB 626 established a regulatory structure for MHKs. The intent of the author was to establish a legal way for home cooks to benefit from their labor and skills and promote economic development in vulnerable communities where the sale of homemade food is popular. The general structure of AB 626 was to enact a permitting process that would be overseen by the same local health agencies that oversee fully-permitted restaurants, but to exempt these MHKs from requirements that would be difficult to meet in a home kitchen, such as sinks with multiple compartments and multiple drainboards, requirements related to the floor, wall and counter material, special plumbing requirements, limitations on who could be in the food preparation area, etc.
   
   AB 626 required jurisdictions to opt-in in order to authorize MHKs in any given area. There are 62 local environmental health agencies that enforce the CalCode in their respective jurisdictions (the 58 counties, plus the cities of Berkeley, Long Beach, Pasadena, and Vernon). Currently, Riverside County is the only jurisdiction that has opted in and authorized MHKs. However, according to the author and various supporters of this bill, one of the reasons some jurisdictions have not opted in is because they believe the provisions of AB 626 detailing the local authorization process is unclear. While the intent of the author was to ensure that only the 58 counties and the four cities with an environmental health department could make the decision as to whether to opt-in and authorize MHKs, and that if any county did so it would be effective in all parts of that county, the law specified that the “governing body of a city or county, or city and county, shall have full discretion to authorize” the permitting of MHK operations. This raised the question as to whether individual cities could opt out even if their county opted in. Therefore, this bill changes this language so that it permits the “governing body of a city, county, or city and county that is designated as the enforcement agency” to authorize the permitting of MHK operations. This makes it clear that it only applies to the four cities with an environmental health department, along with the 58 counties. This bill also makes clear that any authorization applies to all areas within the jurisdiction of the authorizing city or county.
3. Changes to inspection provisions. In addition to clarifying the local authorization process as described above, this bill also clarifies the ability of the local enforcement agency to conduct inspections of MHK operations. Under existing law, as enacted by AB 626, a local enforcement agency is permitted to conduct an inspection with reasonable advance notice, or when the agency has a valid reason, such as a consumer complaint, to suspect that adulterated or otherwise unsafe food has been produced or served by the MHK operation. Existing law also limits the MHK to no more than one inspection each year, except in cases in which there is valid reason to suspect that unsafe food has been produced or served. However, the law also states that MHKs are not subject to routine inspections. This bill clarifies these provisions to permit three different types of inspections of MHKs: a) a routine inspection to observe the permitholder engaging in the usual activities of an MHK operation, which is limited to no more than one per year, and is required to be conducted at a mutually agreeable date and time; b) an investigation inspection when the enforcement agency has just cause that unsafe food has been produced or served or that the permitholder has otherwise violated the law, which is also required to be conducted at a mutually agreeable date and time; and, c) an emergency inspection when the enforcement agency has just cause that the MHK operation poses a serious hazard or immediate threat to public health, in which case the enforcement agency is only require to provide prior notice to the extent that notice is reasonable under the circumstances.
4. Other changes made by this bill tighten up food sanitation exemptions. Other than clarifying the local authorization process and the inspection provisions, most of the changes made by this bill strengthen the sanitation standards by narrowing or qualifying some of the exemptions from the CalCode. For example, MHKs under existing law are exempted from limitations on consumer access to the food facility through food preparation areas, and this bill qualifies that exemption by requiring the MHK to take steps to avoid potential contamination and to prevent a person suffering from symptoms associated with gastrointestinal illness from entering the food preparation area while food is being prepared. Also, under existing law, MHKs are required to keep animals outside of the kitchen during food service and preparation, but service animals were allowed. This bill eliminates the exemption for service animals. Finally, this bill also requires that any advertisement from the MHK to include a statement that the food is “Made in a Home Kitchen” in a clear and conspicuous font and location.
5. Foodborne illnesses. According to the Centers for Disease Control and Prevention (CDC), it is estimated that each year, 48 million people (one in six) get sick from a foodborne illness each year, 128,000 are hospitalized, and 3,000 die. Although anyone can get a foodborne illness, some people are more likely to develop one, including pregnant women, young children, older adults, and people with weakened immune systems. The top five germs that cause illnesses from food eaten in the United States are norovirus, Salmonella, Clostridium perfringens, Campylobacter, and Staphylococcus aureus. Other germs that don’t cause as many illnesses, but when they do are more likely to lead to hospitalization, include Escherichia coli (e. coli), Clostridium botulinum (botulism), Listeria, and Vibrio. Some foods are contaminated before they reach a kitchen, and others are contaminated by food handlers. According to the CDC, sick food handlers specifically caused 53% of the foodborne norovirus outbreaks by contaminating food, and possibly contributed to another 29% of the outbreaks. Among the outbreaks that involved a single contaminated food, over half are produce such as leafy vegetables or fruits, which are commonly eaten raw, and are most often contaminated during preparation or service by a sick food handler.
6. Prior legislation. AB 626 (Garcia) established MHKs as a new category of retail food facility, that cities or counties would have discretion to authorize and permit, to be operated by a resident in a private home, subject to specified requirements. Subjects MHKs to the requirements of a restricted food service facility, with numerous exemptions from these requirements primarily to accommodate the differences between a home kitchen and a commercial kitchen. Limits MHKs to selling food directly to consumers, but specifies that the sale of food through an Internet food service intermediary is considered a direct sale to consumers, and establishes requirements on these intermediaries.
7. Support. The C.O.O.K. Alliance states in support that since the passage of AB 626, it has been working with counties interested in implementing the law, but confusion around issues of jurisdiction and public health requirements has significantly slowed implementation in many counties, effectively blocking this new opportunity for thousands of cooks. The C.O.O.K. Alliance states this bill will allow for easier, safer adoption of AB 626, allowing home cooks to use their skills to generate income. The California Association of Environmental Health Administrators (CAEHA) states in support that this bill addresses several of the implementation concerns that environmental health directors and local health officers had with AB 626 when it was enacted last year. CAEHA states that while these changes do not fully address all of their implementation concerns, nor do they dispel their fundamental discomfort with tehsil and service of food to the public that has been prepared in private homes, they are confident that this bill is in the collective best interest. The Health Officers Association of California (HOAC) states that first and foremost, this bill clarifies that the appropriate level of government to establish these operations is the county government, which oversees both public health and environmental health, or a city that has the required enforcement agency. HOAC states that this bill also codifies important changes recommended by local environmental health directors, such as ensuring that animals are not present in the kitchen during food service hours, that only appropriate wooden surfaces are used for food contact, and enact numerous other changes vital to protecting consumers. The County Health Executives Association of California states that while it opposed AB 626 last year, it has engaged over the last several months with the author’s office and other stakeholders to clarify provisions to more effectively implement MHKs and attempt to better protect the public’s health and safety. The California Association for Micro Enterprise Opportunity states in support that legalizing home cooking has wide support across California, and that supporters are excited to embrace this opportunity but are frustrated that issues of jurisdiction and public health requirements have slowed implementation.
8. Opposition. A number of cities have written in opposition to this bill, primarily to the provision of this bill clarifying that only the 58 counties and the four cities with an environmental health department have the ability to determine whether or not to permit MHK operations. According to the City of South Pasadena, its concerns start with AB 626 and its problematic ambiguities with respect to local authority. The City of South Pasadena points out that AB 626 granted cities and counties alike “full discretion” over the permitting of MHKs in their jurisdiction, while also providing that if a county permits them, a city has no authority to disallow them. The City of South Pasadena states it is alarmed that this bill clarifies this ambiguity in favor of preemption at the expense of cities’ constitutional autonomy over matters of land use. According to the City of South Pasadena, for nearly a century, courts have held that zoning and land use are “intensely local areas of the law” subject to a city’s police powers. The City of South Pasadena understands that not all home businesses conflict with residential uses, but this determination of compatibility has long been entrusted with local officials. The City of West Hollywood makes similar comments in opposition. The City of Paramount argues in opposition that this bill erodes its ability to maintain the integrity of its residential zones, and that MHKs will introduce harmful impacts on neighborhoods, such as additional traffic, demand for on-street parking, noise from business patronage, and potential fire hazards. The Valley Center Municipal Water District states in opposition that this bill will allow the operation of MHKs in residential neighborhoods, thus raising a host of issues associated with the disposal of fats, oils and grease into the wastewater systems.
9. Letter of concern. The County of San Diego (County) states that it is concerned that this bill would prevent cities in the County from making the decision on whether to opt into or out of participation in the MHK program. Under this bill, if the County opts to permit MHKs then all 18 cities within the County’s jurisdiction will be opted in automatically. Consequently, by tying the County’s authorization to the entire region, the bill would also take away the County’s ability to opt in or out solely for the unincorporated area. This could lead to a situation where MHKs are not permitted anywhere in the region, because, as the sole authority, if the County decides not to permit MHKs in the unincorporated area, the decision is made for everyone.

SUPPORT AND OPPOSITION:

Support: California Association of Environmental Health Administrators

C.O.O.K. Alliance

California Association of Micro Enterprise Opportunity

County Health Executives Association of California

Health Officers Association of CA

Oppose: City of Fountain Valley

City of Paramount

City Of South Pasadena

City of Stanton (unless amended)

City of West Hollywood

Valley Center Municipal Water District

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 377

Author:(Eduardo Garcia and Mayes)

As Amended Ver:March 25, 2019

2/3 vote. Urgency

SUMMARY:

Authorizes counties and/or cities within their jurisdictions to permit Microenterprise Home Kitchen Operations (MEHKO). Clarifies the inspection requirements for MEHKOs and other confirming changes. Clarifies regulations for MEHKO permitholders. Contains an urgency clause to make the provisions of this bill effective immediately upon enactment.

Major Provisions

COMMENTS:

Local Environmental Health Directors have primacy in the enforcement of the California Retail Food Code (CRFC) and focus their food facility inspections on minimizing food-borne illness risk factors and maximizing public health interventions.

• 1. Authorization of MEHKO. Since the passage of AB 626 (Eduardo Garcia), Chapter 470, Statutes of 2017, no jurisdictions have 'opted in' to allow MEHKO permits to be issued. According to the author as well as a coalition comprising of the California Conference of Directors of Environmental Health, the Health Officers Association, and the County Health Executives Association of California this is largely because the jurisdictional authority in existing law was unclear and thus no cities and/or counties have opted in to permit MEHKOs.
  2. Inspections of MEHKO. MEHKO regulations are enforced by local health officers and are subjected to inspections, similar to all other types of food facilities. Under current law, MEHKO food facilities are subjected to one routine inspection annually. Unlike other types of food facilities, in lieu of a public health emergency, enforcement agencies cannot, under current law, conduct more than one routine inspection and additionally must give 'reasonable advanced notice' of the routine inspection. Given that MEHKOs are operated out of private residences and thus hours are more flexible and subject to change this bill makes several changes to the inspection regulation of MEHKO. This bill clarifies that there are three types of inspections MEHKO will be subject to including routine, investigational, and emergency.
  3. Public Health Considerations. According to the Center for Disease Control (CDC), an estimated 48 million people get sick from food borne illnesses every year, with 128,000 of these individuals hospitalized and 3,000 die. The top five food borne illnesses in the United States are Norovirus, Salmonella, Clostridium, Perfingens, Camylobacter, and Staphylococcus aureus. Additionally, germs such as Escheria coli (E.coli), Clostridium botulinum (botulism), Listeria, and Vibrio are less common, but lead to the most dire consequences such as hospitalization and death in some more vulnerable individuals. According to the CDC, over half of all food borne illnesses arise from contamination that occurs during food preparation/handling. This bill makes clarifications to the inspections of MEHKO that to permit inspections to occur outside of business hours. All other food facilities require unannounced inspections during working hours so that the actual food preparation and storage processes and procedures can be accurately assessed. It is reasonable, since the MEHKO functions also as a private home to exempt these food facilities from unannounced visits so as to protect their privacy, however, since one of the main public health concerns for these operations is the food preparations, there could be unintended risk associated with the possibility of conducting inspections when a MEHKO is not operating, as unsafe handling and/or storage practices would not be observed and can be missed leading to potential public health threats.
  4. Internet Intermediaries and Delivery Services. Many restaurants in the U.S., including those in California, use a variety of internet services and platforms in order to expand their access to customers and increase the efficiency of their businesses. Internet intermediaries are platforms that provide internet services, for example, a business can use an internet intermediary to facilitate the billing transactions of their sales. For example, a MEHKO permitholder can use internet services to solicit orders and complete the transactions. Under current law these transactions are legal for MEHKO permitholders to utilize. This bill however, clarifies that the registration of the MEHKO with an internet intermediate can only be used for services not related to food distribution.

1. This bill also clarifies that an internet intermediary cannot intentionally use third-party food delivery systems to handle the food prepared by the MEHKO permitholder. This provision could potentially diminish the public health risk of food contamination by limiting the number of food handlers before consumption.

According to the Author:

According to the author, this bill addresses several questions and concerns that have been raised in response to the bill that created MEHKOs in statute, AB 626 warrants clarification in the law. These changes will help ensure that the requirements of legislation are clearly understood across all stakeholders, easing the process of implementation so California can take advantage of this exciting new entrepreneurship opportunity.

Arguments in Support:

According to County Health Executives Association of California, provisions related to CRFC-exempted requirements and activities included in this bill provide greater protections to consumers and the general public. These provisions better conform to best practices in food handling, food safety, and prevention of contamination. The language of this bill around local enforcement agency inspection circumstances will also provide the ability for local health and environmental health departments to conduct necessary and timely inspection activities in order to protect consumers and the public.

Arguments in Opposition:

A number of cities, including the City of Vista and the City of West Hollywood, write in opposition to this bill with concerns about authorizations of permits, zoning, and wastewater systems management.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, negligible. Permitting is locally enforced and is supported by local fees.

VOTES:

ASM HEALTH: 13-1-1

YES: Wood, Mayes, Aguiar-Curry, Bigelow, Bonta, Burke, Wicks, Flora, McCarty, Nazarian, Ramos, Rodriguez, Santiago

NO: Waldron

ABS, ABST OR NV: Limón

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Jones-Sawyer, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

UPDATED:

VERSION: March 25, 2019

CONSULTANT: Marissa Kraynak / HEALTH / (916) 319-2097 FN: 0000282

Date of Hearing: April 24, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 377

Author:(Eduardo Garcia) – As Amended Ver:March 25, 2019

Urgency: Yes State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill makes a variety of minor and clarifying changes to statutes authorizing local jurisdictions to permit Microenterprise Home Kitchen Operations (MEHKOs).

FISCAL EFFECT:

Negligible. Permitting is locally enforced and is supported by local fees.

COMMENTS:

1. Purpose. According to the author, this bill responds to several questions and concerns that have been raised in response to the bill that authorized MEHKOs, AB 626 (E. Garcia), Chapter 470, Statutes of 2017.
2. Background. Retail food sales in California, in both restaurants and grocery stores, are governed by the California Retail Food Code and are locally enforced by environmental health directors to minimize food-borne illness risk factors. AB 626 authorized food facilities run out of an individual’s home (MEHKOs) to operate in counties that opted to regulate them. No local jurisdictions have yet opted in, partially because jurisdictional authority is unclear, which this bill clarifies.
3. Urgency. This bill states immediate implementation is necessary to ensure consistent statewide implementation of health and food safety responsibilities of home kitchens.
4. Support and Opposition. Local health agencies support this bill; several cities have written in opposition with concerns about authorizations of permits, zoning and wastewater systems management.
5. Prior Legislation. AB 626 created and established the requirements for regulatory structure for MEHKOs.

AB 2593 (Brown) of 2016 was similar to this bill but not heard in the Assembly Health Committee at the request of the author.

AB 1616 (Gatto), Chapter 415, Statues of 2012, enacted the California Homemade Food Act.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: April 9, 2019

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

ABPCA Bill Id:AB 377

Author:Eduardo Garcia – As Amended Ver:March 25, 2019

SUBJECT: Microenterprise home kitchen operations.

SUMMARY: Authorizes counties and/or cities within their jurisdictions to permit Microenterprise Home Kitchen Operations (MEHKO). Clarifies the inspection requirements for MEHKOs and other confirming changes. Clarifies regulations for MEHKO permitholders. Contains an urgency clause to make the provisions of this bill effective immediately upon enactment. Specifically, this bill:

1. Authorizes the governing body of a city, county, city and county within its jurisdiction (governing body), that is a designated as the enforcement agency (EA) by ordinance or resolution, the permitting of MEHKO.
2. Applies that the authorization in 1) above to all areas within the governing body’s jurisdiction including any city residing within a county that has opted to allow MEHKO permitting.
3. Exempts MEHKOs from existing food facility regulations if the following conditions are met:
   1. Utensils and equipment are able to be properly cleaned and sanitized;
   2. If a dishwasher is used, it must be operated in accordance to the manufacturer’s specifications; and,
   3. Clarifies that in the exemption for wooden surfaces in direct contact with food during preparation applies only for surfaces constructed out of hard maple or equivalent wood.
4. Clarifies that there is no prohibition on the presence of persons unnecessary to the food facility operation in the food preparation, food storage, or warewashing areas, provided that the MEHKO permitholders take steps to prevent any potential contamination of food, containers, equipment, and single use utensils with any food borne illnesses.
5. Clarifies that there is no limitation on employee consumption of food, drink, or tobacco outside of designated areas provided that the MEHKO permitholders take steps to prevent any potential contamination of food, containers, equipment, and single use utensils with any food borne illnesses.
6. Clarifies that there is no limitation on consumer access to the food facility through food preparation areas provided that the MEHKO permitholders to take steps to prevent any potential contamination of food, containers, equipment, and single use utensils with any food borne illnesses.
7. Prohibits food prepared for a demonstration or event from being sold to consumers not attending the demonstration or event.
8. Clarifies that all animals, including service animals, must be kept out of the kitchen area only during food service and preparation.
9. Clarifies that the stated days and times of operation are not binding.
10. Clarifies that MEHKOs can only offer for sale food that was prepared during a food demonstration or preparation event to a consumer who was present at that food demonstration or preparation event.
11. Repeals inspection requirements in existing law and instead requires MEHKOs to be subject to the following types of inspections:
    1. A routine inspection for the purpose of allowing the EA to observe the permitholder engage in the usual activities of a MEHKO including, but not limited to, active food preparation. Requires the EA to provide notice to a permitholder before a routine inspection and shall conduct the routine inspection at a mutually agreeable date and time. A MEHKO cannot be subject to more than one routine inspection within 12 months.
    2. An investigation inspection for the purpose of allowing the EA to perform an inspection when the EA has just cause that adulterated or otherwise unsafe food has been produced or served by the MEHKO or that the permitholder has otherwise violated this part. One or more consumer complaints may constitute just cause for an investigation inspection. Requires the EA to provide notice to a permitholder before an investigation inspection and conduct the investigation inspection at a mutually agreeable date and time.
    3. An emergency inspection for the purpose of allowing the EA to perform a limited inspection when the EA has just cause that the MEHKO poses a serious hazard or immediate threat to public health. To the extent that notice of an emergency inspection is reasonable under the circumstances, the EA shall provide notice to a permitholder before an emergency inspection. Requires the scope of emergency inspection to be limited in duration and scope to address the facts giving just cause that the MEHKO poses a serious hazard or immediate threat to public health.
       1. Limits the EA to inspect only the permitted area of the MEHKO for the purpose of enforcing or administering an emergency inspection; and,
       2. Allows the EA to seek recovery from a MEHKO of an amount that does not exceed the EA’s reasonable costs of inspecting the MEHKO.
12. Prohibits delivery of food produced in a MEHKO by a third-party delivery service.
13. Clarifies the requirements for a MEHKO’s use of internet intermediaries as follows:
    1. Requires that a registration, once issued, is nontransferable; and valid only for the person and type of business specifies by that registration by that registration, and unless suspended and revoked for cause by the department;
    2. Prohibits the use of the word “catering" or any variation of that word in a public listing, or publication of food services by a MEHKO.; and,
    3. Prohibits the use of third-party delivery systems for food prepared by MEHKO.
14. Requires a MEHKO to include the following in advertisements:
    • 1. The name of the EA that issued the permit;
      2. The permit number; and,
      3. A statement that the food prepared is “Made in a Home Kitchen” is written or spoken clearly.

EXISTING LAW:

1. Establishes the California Retail Food Code (CRFC), under the Department of Public Health. Includes uniform health and sanitation standards for retail food facilities, and requires local health agencies to enforce these provisions. Includes, in the CRFC the following definitions:
   1. “Food facility” as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, as specified. Exempts, among others, a private home, including a registered or permitted cottage food operation, from the definition of food facility.
   2. “Restricted food service facility” to mean either of the following:
      1. A food facility of 20 guestrooms or less that provides overnight transient occupancy accommodations, that serves food only to its registered guests, that serves only a breakfast or similar early morning meal and no other meals except light food or snacks presented to the guest for self-service, and that includes the price of food in the price of the overnight transient occupancy accommodation; or,
      2. An agricultural homestay facility, as specified.
   3. “MEHKO” as a food facility that is operated by a resident in a private home where food is prepared for a consumer and meets all of the following requirements:
      1. The operation has no more than one full-time equivalent food employee, not including a family member or household member;
      2. Food is prepared, cooked, and served on the same day, picked up by the customer, or delivered within a safe time period based on holding equipment capacity;
      3. Food preparation does not involve processes that require a Hazard Analysis Critical Control Point (HACCP) plan, or the production, service, or sale of raw milk or raw milk products, as specified;
      4. There is no service and sale of raw oysters;
      5. Food preparation is limited to no more than 30 individual meals per day, and no more than 60 individual meals per week, unless otherwise approved by the local EA based on food preparation capacity of the operation; and,
      6. The operation has no more than $50,000 in verifiable gross annual sales.
2. Exempts MEHKO from the following provisions:
   1. Handwashing facility requirements;
   2. Provisions regarding sinks, warewashing machines, and manual and machine sanitation providing the MEHKO has working hot and cold water;
   3. Prohibitions on the presence of people unnecessary to the food facility operation in spaces designated for the MEHKO;
   4. Posting requirements for no smoking signs;
   5. Limitations on employee consumption of food, drink, and tobacco outside of designated areas;
   6. Limitations on consumer access to the food facility through preparation areas;
   7. Display guard, cover, and container requirements, as specified, as long as any food on display that is not protected from the direct line of a consumer’s mouth by an effective means is not served or sold to any subsequent consumer;
   8. Limitations on outdoor display and sale of foods;
   9. Requirements to provide clean drinking cups and tableware for second portions and beverage refills;
   10. Requirements pertaining to the characteristics and certification of utensils and equipment, as long as utensils and equipment are designed to retain their characteristic qualities under normal use conditions;
   11. Requirements pertaining to the characteristics, construction, and multiuse of food-contact and nonfood-contact surfaces, as long as food contact surfaces are smooth, easily cleanable, and in good repair;
   12. Requirements pertaining to the characteristics, construction, and disassembly of clean-in-place equipment;
   13. Limitations on the use of wood as a food contact surface and in connection with other equipment;
   14. Any requirement relating to ventilation, as long as gases, odors, steam, heat, grease, vapors, and smoke are able to escape from the kitchen;
   15. Requirements that cold or hot holding equipment used for potentially hazardous food be equipped with integral or permanently affixed temperature measuring devices or product mimicking sensors;
   16. Requirements pertaining to the installation of fixed, floor-mounted, and table-mounted equipment;
   17. Dedicated laundry facility requirements, as specified, as long as linens used in connection with the MEHKO are laundered separately from the household and other laundry;
   18. Requirements pertaining to water, plumbing, drainage, and waste, as specified;
   19. Any requirement that an MEHKO have more than one toilet facility or that access to the toilet facility not require passage through the food preparation, food storage, or utensil washing areas;
   20. Light intensity, light source, and lightbulb requirements, as long as food preparation areas are well lighted by natural or artificial light whenever food is being prepared;
   21. Requirements to provide and use lockers, storage facilities, and designated dressing areas, and that food facility premises be free of litter and items that are unnecessary to the operation, as long as personal effects and clothing not ordinarily found in a home kitchen are placed or stored away from food preparation areas and dressing takes place outside of the kitchen;
   22. Limitations on the presence and handling of animals, such as domestic, service, or patrol animals, as long as all animals, other than service animals, are kept outside of the kitchen and dining areas during food service and preparation;
   23. Requirements pertaining to floor, wall, and ceiling surfaces, as long as the floor, wall, and ceiling surfaces of the kitchen, storage, and toilet areas are smooth, of durable construction, and easily cleanable with no limitations on the use of wood, tile, and other nonfiber floor surfaces ordinarily used in residential settings;
   24. Any local evaluation or grading system for food facilities, as authorized by specified provisions of law;
   25. All prohibitions and limitations on the use of a kitchen in a private home as a food facility, as long as food is not prepared in designated sleeping quarters. Permits 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 to be used in MEHKO operations; and,
   26. Planning and permitting provisions of specified provisions of law.
3. Requires any person delivering food on behalf of a MEHKO to be an employee of the operation, a family member, or a household member of the permitholder.
4. Permits MEHKO to utilize the services of an internet food service intermediary if the internet intermediary meets specified criteria.

FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, this bill addresses several questions and concerns that have been raised in response to the bill that created MEHKOs in statute, AB 626 (Garcia), Chapter 470, Statutes of 2017, that warrant clarification in the law. These changes will help ensure that the requirements of legislation are clearly understood across all stakeholders, easing the process of implementation so California can take advantage of this exciting new entrepreneurship opportunity.
2. BACKGROUND. Retail food sales in California, in both restaurants and grocery stores, are governed by CRFC. According to the California Retail Food Safety Coalition (CRFSC), a broad-based coalition of federal, state, and local regulators and the retail food industry, the CRFC is modeled after the federal Model Food Code, developed by the federal Food and Drug Administration and updated every two years to reflect the latest scientific and evidence-based practices. Local Environmental Health Directors have primacy in the enforcement of the CRFC and focus their food facility inspections on minimizing food-borne illness risk factors and maximizing public health interventions. In 2017, MEHKO food facilities were established by AB 626. These food facilities are run out of an individual’s home and regulations were set such that there are specific exemptions to allow for an operation in a typical home setting.
   1. Authorization of MEHKO. Since the passage of AB 626, no jurisdictions have ‘opted in’ to allow MEHKO permits to be issued. According to the author as well as a coalition comprising of the California Conference of Directors of Environmental Health, the Health Officers Association, and the County Health Executives Association of California this is largely because the jurisdictional authority in existing law was unclear and thus no cities and/or counties have opted in to permit MEHKOs.
   2. Inspections of MEHKO. MEHKO regulations are enforced by local health officers and are subjected to inspections, similar to all other types of food facilities. Under current law, MEHKO food facilities are subjected to one routine inspection annually. Unlike other types of food facilities, in lieu of a public health emergency, enforcement agencies cannot, under current law, conduct more than one routine inspection and additionally must give ‘reasonable advanced notice’ of the routine inspection. Given that MEHKOs are operated out of private residences and thus hours are more flexible and subject to change this bill makes several changes to the inspection regulation of MEHKO. This bill clarifies that there are three types of inspections MEHKO will be subject to:
      1. Routine Inspections must be prescheduled at an agreeable time with the permitholder and EA and can occur at any time agreed upon, including hours in which the MEHKO is not operating;
      2. Investigational Inspection. In the event of a potential public health threat such as one or more consumer complaint of adulterated or unsafe food being produced by a MEHKO, this type of inspection will still require prior notice to the permitholder and will occur at a mutually agreeable time between the permitholder and EA; and,
      3. Emergency Inspections. In the event of a serious and immediate threat to public health that has been identified and substantiated by local enforcement officers, an emergency inspection may be conducted. If possible, notice should be given to the permitholder, however, this type of inspection can occur without notice given the immediate threat and hazard to the public, this type of inspection is also clarified to be a limited scope inspection meaning that the scope of the inspection must be contained to investigating the immediate threat that has been identified.
   3. Public Health Considerations. According to the Center for Disease Control (CDC), an estimated 48 million people get sick from food borne illnesses every year, with 128,000 of these individuals hospitalized and 3,000 die. The top five food borne illnesses in the United States are Norovirus, Salmonella, Clostridium, Perfingens, Camylobacter, and Staphylococcus aureus. Additionally, germs such as Escheria coli (E.coli), Clostridium botulinum (botulism), Listeria, and Vibrio are less common, but lead to the most dire consequences such as hospitalization and death in some more vulnerable individuals. According to the CDC, over half of all food borne illnesses arise from contamination that occurs during food preparation/handling. In October of 2018 there was an E. Coli outbreak originating from romaine lettuce that gained national attention. According to the CDC, in 2018 there were three major outbreaks of food borne illnesses due to contaminated romaine lettuce and ground beef. A total of 290 individuals were infected nationwide, 43% became sick enough to be hospitalized. Of the 290 infected, 61 individuals were cases in California. In order to prevent these outbreaks, proper handling of food in any food facility, including MEHKOs is integral.

This bill makes clarifications to the inspections of MEHKO. These clarifications, as currently written, would be permitted to occur outside of business hours. All other food facilities require unannounced inspections during working hours so that the actual food preparation and storage processes and procedures can be accurately assessed. It is reasonable, since the MEHKO functions also as a private home to exempt these food facilities from unannounced visits so as to protect their privacy, however, since one of the main public health concerns for these operations is the food preparations, there could be unintended risk associated with the possibility of conducting inspections when a MEHKO is not operating, as unsafe handling and/or storage practices would not be observed and can be missed leading to potential public health threats.

• 1. Internet Intermediaries and Delivery Services. Many restaurants in the U.S., including those in California, use a variety of internet services and platforms in order to expand their access to customers and increase the efficiency of their businesses. Internet intermediaries are platforms that provide internet services, for example, a business can use an internet intermediary to facilitate the billing transactions of their sales. For example, a MEHKO permitholder can use an internet services to solicit orders and complete the transactions. Under current law these transactions are legal for MEHKO permitholders to utilize. This bill however, clarifies that the registration of the MEHKO with an internet intermediate can only be used for services not related to food distribution.

This bill also clarifies that an internet intermediary cannot intentionally use third-party food delivery systems to handle the food prepared by the MEHKO permitholder. This provision could potentially diminish the public health risk of food contamination by limiting the number of food handlers before consumption.

1. SUPPORT. According to County Health Executives Association of California, provisions related to CRFC-exempted requirements and activities included in this bill provide greater protections to consumers and the general public. These provisions better conform to best practices in food handling, food safety, and prevention of contamination. The language of this bill around local EA inspection circumstances will also provide the ability for local health and environmental health departments the ability to conduct necessary and timely inspection activities in order to protect consumers and the public.
2. OPPOSITION. A number of cities, including the City of Vista and the City of West Hollywood, write in opposition to this bill with concerns about authorizations of permits, zoning, and wastewater systems management.
3. PREVIOUS LEGISLATION.
   1. AB 626 created and established the requirements for regulatory structure for MEHKO.
   2. AB 2593 (Brown) of 2016 was similar to this bill but not heard in the Assembly Health committee at the request of the author.
   3. AB 1616 (Gatto), Chapter 415, Statues of 2012, enacted the California Homemade Food Act.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association Of Environmental Health Administrators
County Health Executives Association Of California
Health Officers Association Of California

Opposition

City Of Goleta
City Of Hermosa Beach

City of South Pasadena
City Of Vista
City Of West Hollywood
Valley Center Municipal Water District

Analysis Prepared by: Marissa Kraynak / HEALTH / (916) 319-2097

Date of Hearing: April 2, 2019

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

ABPCA Bill Id:AB 377

Author:Eduardo Garcia – As Amended Ver:March 25, 2019

SUBJECT: Microenterprise home kitchen operations.

SUMMARY: Authorizes counties and/or cities within their jurisdictions to permit Microenterprise Home Kitchen Operations (MEHKO). Clarifies the inspection requirements for MEHKOs and other confirming changes. Clarifies regulations for MEHKO permitholders. Contains an urgency clause to make the provisions of this bill effective immediately upon enactment. Specifically, this bill:

1. Authorizes the governing body of a city, county, city and county within its jurisdiction (governing body), that is a designated as the enforcement agency (EA) by ordinance or resolution, the permitting of MEHKO.
2. Applies that the authorization in 1) above to all areas within the governing body’s jurisdiction including any city residing within a county that has opted to allow MEHKO permitting.
3. Exempts MEHKOs from existing food facility regulations if the following conditions are met:
   1. Utensils and equipment are able to be properly cleaned and sanitized;
   2. If a dishwasher is used, it must be operated in accordance to the manufacturer’s specifications; and,
   3. Clarifies that in the exemption for wooden surfaces in direct contact with food during preparation applies only for surfaces constructed out of hard maple or equivalent wood.
4. Clarifies that there is no prohibition on the presence of persons unnecessary to the food facility operation in the food preparation, food storage, or warewashing areas, provided that the MEHKO permitholders take steps to prevent any potential contamination of food, containers, equipment, and single use utensils with any food borne illnesses.
5. Clarifies that there is no limitation on employee consumption of food, drink, or tobacco outside of designated areas provided that the MEHKO permitholders take steps to prevent any potential contamination of food, containers, equipment, and single use utensils with any food borne illnesses.
6. Clarifies that there is no limitation on consumer access to the food facility through food preparation areas provided that the MEHKO permitholders to take steps to prevent any potential contamination of food, containers, equipment, and single use utensils with any food borne illnesses.
7. Prohibits food prepared for a demonstration or event from being sold to consumers not attending the demonstration or event.
8. Clarifies that all animals, including service animals, must be kept out of the kitchen area only during food service and preparation.
9. Clarifies that the stated days and times of operation are not binding.
10. Clarifies that MEHKOs can only offer for sale food that was prepared during a food demonstration or preparation event to a consumer who was present at that food demonstration or preparation event.
11. Repeals inspection requirements in existing law and instead requires MEHKOs to be subject to the following types of inspections:
    1. A routine inspection for the purpose of allowing the EA to observe the permitholder engage in the usual activities of a MEHKO including, but not limited to, active food preparation. Requires the EA to provide notice to a permitholder before a routine inspection and shall conduct the routine inspection at a mutually agreeable date and time. A MEHKO cannot be subject to more than one routine inspection within 12 months.
    2. An investigation inspection for the purpose of allowing the EA to perform an inspection when the EA has just cause that adulterated or otherwise unsafe food has been produced or served by the MEHKO or that the permitholder has otherwise violated this part. One or more consumer complaints may constitute just cause for an investigation inspection. Requires the EA to provide notice to a permitholder before an investigation inspection and conduct the investigation inspection at a mutually agreeable date and time.
    3. An emergency inspection for the purpose of allowing the EA to perform a limited inspection when the EA has just cause that the MEHKO poses a serious hazard or immediate threat to public health. To the extent that notice of an emergency inspection is reasonable under the circumstances, the EA shall provide notice to a permitholder before an emergency inspection. Requires the scope of emergency inspection to be limited in duration and scope to address the facts giving just cause that the MEHKO poses a serious hazard or immediate threat to public health.
       1. Limits the EA to inspect only the permitted area of the MEHKO for the purpose of enforcing or administering an emergency inspection; and,
       2. Allows the EA to seek recovery from a MEHKO of an amount that does not exceed the EA’s reasonable costs of inspecting the MEHKO.
12. Prohibits delivery of food produced in a MEHKO by a third-party delivery service.
13. Clarifies the requirements for a MEHKO’s use of internet intermediaries as follows:
    1. Requires that a registration, once issued, is nontransferable; and valid only for the person and type of business specifies by that registration by that registration, and unless suspended and revoked for cause by the department;
    2. Prohibits the use of the word “catering" or any variation of that word in a public listing, or publication of food services by a MEHKO.; and,
    3. Prohibits the use of third-party delivery systems for food prepared by MEHKO.
14. Requires a MEHKO to include the following in advertisements:
    • 1. The name of the EA that issued the permit;
      2. The permit number; and,
      3. A statement that the food prepared is “Made in a Home Kitchen” is written or spoken clearly.

EXISTING LAW:

1. Establishes the California Retail Food Code (CRFC), under the Department of Public Health. Includes uniform health and sanitation standards for retail food facilities, and requires local health agencies to enforce these provisions. Includes, in the CRFC the following definitions:
   1. “Food facility” as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, as specified. Exempts, among others, a private home, including a registered or permitted cottage food operation, from the definition of food facility.
   2. “Restricted food service facility” to mean either of the following:
      1. A food facility of 20 guestrooms or less that provides overnight transient occupancy accommodations, that serves food only to its registered guests, that serves only a breakfast or similar early morning meal and no other meals except light food or snacks presented to the guest for self-service, and that includes the price of food in the price of the overnight transient occupancy accommodation; or,
      2. An agricultural homestay facility, as specified.
   3. “MEHKO” as a food facility that is operated by a resident in a private home where food is prepared for a consumer and meets all of the following requirements:
      1. The operation has no more than one full-time equivalent food employee, not including a family member or household member;
      2. Food is prepared, cooked, and served on the same day, picked up by the customer, or delivered within a safe time period based on holding equipment capacity;
      3. Food preparation does not involve processes that require a Hazard Analysis Critical Control Point (HACCP) plan, or the production, service, or sale of raw milk or raw milk products, as specified;
      4. There is no service and sale of raw oysters;
      5. Food preparation is limited to no more than 30 individual meals per day, and no more than 60 individual meals per week, unless otherwise approved by the local EA based on food preparation capacity of the operation; and,
      6. The operation has no more than $50,000 in verifiable gross annual sales.
2. Exempts MEHKO from the following provisions:
   1. Handwashing facility requirements;
   2. Provisions regarding sinks, warewashing machines, and manual and machine sanitation providing the MEHKO has working hot and cold water;
   3. Prohibitions on the presence of people unnecessary to the food facility operation in spaces designated for the MEHKO;
   4. Posting requirements for no smoking signs;
   5. Limitations on employee consumption of food, drink, and tobacco outside of designated areas;
   6. Limitations on consumer access to the food facility through preparation areas;
   7. Display guard, cover, and container requirements, as specified, as long as any food on display that is not protected from the direct line of a consumer’s mouth by an effective means is not served or sold to any subsequent consumer;
   8. Limitations on outdoor display and sale of foods;
   9. Requirements to provide clean drinking cups and tableware for second portions and beverage refills;
   10. Requirements pertaining to the characteristics and certification of utensils and equipment, as long as utensils and equipment are designed to retain their characteristic qualities under normal use conditions;
   11. Requirements pertaining to the characteristics, construction, and multiuse of food-contact and nonfood-contact surfaces, as long as food contact surfaces are smooth, easily cleanable, and in good repair;
   12. Requirements pertaining to the characteristics, construction, and disassembly of clean-in-place equipment;
   13. Limitations on the use of wood as a food contact surface and in connection with other equipment;
   14. Any requirement relating to ventilation, as long as gases, odors, steam, heat, grease, vapors, and smoke are able to escape from the kitchen;
   15. Requirements that cold or hot holding equipment used for potentially hazardous food be equipped with integral or permanently affixed temperature measuring devices or product mimicking sensors;
   16. Requirements pertaining to the installation of fixed, floor-mounted, and table-mounted equipment;
   17. Dedicated laundry facility requirements, as specified, as long as linens used in connection with the MEHKO are laundered separately from the household and other laundry;
   18. Requirements pertaining to water, plumbing, drainage, and waste, as specified;
   19. Any requirement that an MEHKO have more than one toilet facility or that access to the toilet facility not require passage through the food preparation, food storage, or utensil washing areas;
   20. Light intensity, light source, and lightbulb requirements, as long as food preparation areas are well lighted by natural or artificial light whenever food is being prepared;
   21. Requirements to provide and use lockers, storage facilities, and designated dressing areas, and that food facility premises be free of litter and items that are unnecessary to the operation, as long as personal effects and clothing not ordinarily found in a home kitchen are placed or stored away from food preparation areas and dressing takes place outside of the kitchen;
   22. Limitations on the presence and handling of animals, such as domestic, service, or patrol animals, as long as all animals, other than service animals, are kept outside of the kitchen and dining areas during food service and preparation;
   23. Requirements pertaining to floor, wall, and ceiling surfaces, as long as the floor, wall, and ceiling surfaces of the kitchen, storage, and toilet areas are smooth, of durable construction, and easily cleanable with no limitations on the use of wood, tile, and other nonfiber floor surfaces ordinarily used in residential settings;
   24. Any local evaluation or grading system for food facilities, as authorized by specified provisions of law;
   25. All prohibitions and limitations on the use of a kitchen in a private home as a food facility, as long as food is not prepared in designated sleeping quarters. Permits 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 to be used in MEHKO operations; and,
   26. Planning and permitting provisions of specified provisions of law.
3. Requires any person delivering food on behalf of a MEHKO to be an employee of the operation, a family member, or a household member of the permitholder.
4. Permits MEHKO to utilize the services of an internet food service intermediary if the internet intermediary meets specified criteria.

FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, this bill addresses several questions and concerns that have been raised in response to the bill that created MEHKOs in statute, AB 626 (Garcia), Chapter 470, Statutes of 2017, that warrant clarification in the law. These changes will help ensure that the requirements of legislation are clearly understood across all stakeholders, easing the process of implementation so California can take advantage of this exciting new entrepreneurship opportunity.
2. BACKGROUND. Retail food sales in California, in both restaurants and grocery stores, are governed by CRFC. According to the California Retail Food Safety Coalition (CRFSC), a broad-based coalition of federal, state, and local regulators and the retail food industry, the CRFC is modeled after the federal Model Food Code, developed by the federal Food and Drug Administration and updated every two years to reflect the latest scientific and evidence-based practices. Local Environmental Health Directors have primacy in the enforcement of the CRFC and focus their food facility inspections on minimizing food-borne illness risk factors and maximizing public health interventions. In 2017, MEHKO food facilities were established by AB 626. These food facilities are run out of an individual’s home and regulations were set such that there are specific exemptions to allow for an operation in a typical home setting.
   1. Authorization of MEHKO. Since the passage of AB 626, no jurisdictions have ‘opted in’ to allow MEHKO permits to be issued. According to the author as well as a coalition comprising of the California Conference of Directors of Environmental Health, the Health Officers Association, and the County Health Executives Association of California this is largely because the jurisdictional authority in existing law was unclear and thus no cities and/or counties have opted in to permit MEHKOs.
   2. Inspections of MEHKO. MEHKO regulations are enforced by local health officers and are subjected to inspections, similar to all other types of food facilities. Under current law, MEHKO food facilities are subjected to one routine inspection annually. Unlike other types of food facilities, in lieu of a public health emergency, enforcement agencies cannot, under current law, conduct more than one routine inspection and additionally must give ‘reasonable advanced notice’ of the routine inspection. Given that MEHKOs are operated out of private residences and thus hours are more flexible and subject to change this bill makes several changes to the inspection regulation of MEHKO. This bill clarifies that there are three types of inspections MEHKO will be subject to:
      1. Routine Inspections must be prescheduled at an agreeable time with the permitholder and EA and can occur at any time agreed upon, including hours in which the MEHKO is not operating;
      2. Investigational Inspection. In the event of a potential public health threat such as one or more consumer complaint of adulterated or unsafe food being produced by a MEHKO, this type of inspection will still require prior notice to the permitholder and will occur at a mutually agreeable time between the permitholder and EA; and,
      3. Emergency Inspections. In the event of a serious and immediate threat to public health that has been identified and substantiated by local enforcement officers, an emergency inspection may be conducted. If possible, notice should be given to the permitholder, however, this type of inspection can occur without notice given the immediate threat and hazard to the public, this type of inspection is also clarified to be a limited scope inspection meaning that the scope of the inspection must be contained to investigating the immediate threat that has been identified.
   3. Public Health Considerations. According to the Center for Disease Control (CDC), an estimated 48 million people get sick from food borne illnesses every year, with 128,000 of these individuals hospitalized and 3,000 die. The top five food borne illnesses in the United States are Norovirus, Salmonella, Clostridium, Perfingens, Camylobacter, and Staphylococcus aureus. Additionally, germs such as Escheria coli (E.coli), Clostridium botulinum (botulism), Listeria, and Vibrio are less common, but lead to the most dire consequences such as hospitalization and death in some more vulnerable individuals. According to the CDC, over half of all food borne illnesses arise from contamination that occurs during food preparation/handling. In October of 2018 there was an E. Coli outbreak originating from romaine lettuce that gained national attention. According to the CDC, in 2018 there were three major outbreaks of food borne illnesses due to contaminated romaine lettuce and ground beef. A total of 290 individuals were infected nationwide, 43% became sick enough to be hospitalized. Of the 290 infected, 61 individuals were cases in California. In order to prevent these outbreaks, proper handling of food in any food facility, including MEHKOs is integral.

This bill makes clarifications to the inspections of MEHKO. These clarifications, as currently written, would be permitted to occur outside of business hours. All other food facilities require unannounced inspections during working hours so that the actual food preparation and storage processes and procedures can be accurately assessed. It is reasonable, since the MEHKO functions also as a private home to exempt these food facilities from unannounced visits so as to protect their privacy, however, since one of the main public health concerns for these operations is the food preparations, there could be unintended risk associated with the possibility of conducting inspections when a MEHKO is not operating, as unsafe handling and/or storage practices would not be observed and can be missed leading to potential public health threats.

• 1. Internet Intermediaries and Delivery Services. Many restaurants in the U.S., including those in California, use a variety of internet services and platforms in order to expand their access to customers and increase the efficiency of their businesses. Internet intermediaries are platforms that provide internet services, for example, a business can use an internet intermediary to facilitate the billing transactions of their sales. For example, a MEHKO permitholder can use an internet services to solicit orders and complete the transactions. Under current law these transactions are legal for MEHKO permitholders to utilize. This bill however, clarifies that the registration of the MEHKO with an internet intermediate can only be used for services not related to food distribution.

This bill also clarifies that an internet intermediary cannot intentionally use third-party food delivery systems to handle the food prepared by the MEHKO permitholder. This provision could potentially diminish the public health risk of food contamination by limiting the number of food handlers before consumption.

1. SUPPORT. According to County Health Executives Association of California, provisions related to CRFC-exempted requirements and activities included in this bill provide greater protections to consumers and the general public. These provisions better conform to best practices in food handling, food safety, and prevention of contamination. The language of this bill around local EA inspection circumstances will also provide the ability for local health and environmental health departments the ability to conduct necessary and timely inspection activities in order to protect consumers and the public.
2. OPPOSITION. A number of cities, including the City of Vista and the City of West Hollywood, write in opposition to this bill with concerns about authorizations of permits, zoning, and wastewater systems management.
3. PREVIOUS LEGISLATION.
   1. AB 626 created and established the requirements for regulatory structure for MEHKO.
   2. AB 2593 (Brown) of 2016 was similar to this bill but not heard in the Assembly Health committee at the request of the author.
   3. AB 1616 (Gatto), Chapter 415, Statues of 2012, enacted the California Homemade Food Act.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Environmental Health Administrators
County Health Executives Association of California

Opposition

City Of Goleta
City Of Hermosa Beach
City Of Vista
City Of West Hollywood
Valley Center Municipal Water District

Analysis Prepared by: Marissa Kraynak / HEALTH / (916) 319-2097