HB 2777 — Concerning the operation, authorization, and permitting of microenterprise home kitchens.

H-4490.5SUBSTITUTEH-4038.1HOUSE HOUSE BILL 2777State of Washington66th Legislature2020 Regular SessionByHouseSessionByRepresentatives Local Government (originally sponsored by Representatives Frame, Peterson, Macri, Gregerson, Hudgins, Ramel, Fitzgibbon, Riccelli, J.

Johnson, Senn, Doglio, Davis, Pettigrew, Pollet, and Slatter)READSlatterRead FIRSTfirst TIMEtime 02/07/20.AN01/21/20.Referred to Committee on Local Government.AN ACT Relating to the operation, authorization, and permitting of microenterprise home kitchens;

creatingand aprescribing newpenalties.BE section;IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:Sec.

prescribing penalties;

and providing an expiration date.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:Sec.

The local board of health, acting through the local health officer, is the regulatory authority for the activity of a food establishment, except as otherwise provided by law.(12) "Secretary" means the secretary of health, or the secretary's designee.(13) "Servicing area" means an operating base location to which a mobile food unit or transportation vehicle returns regularly for such things as vehicle and equipment cleaning, discharging liquid or solid wastes, refilling water tanks and ice bins, and boarding food.(14) "Social determinants of health" means those elements of social structure most closely shown to affect health and illness, including at a minimum, early learning, education, socioeconomic standing, safe housing, gender, incidence of violence, convenient and affordable access to safe opportunities for physical activity, healthy diet, and appropriate health care services.(15) "State board" means the state board of health created under this chapter.(16)(a) "Domestic residence" means a dwelling where one or more persons resides.(b) "Domestic residence" does not include an outbuilding, shed, barn, or other similar structure that has not been permitted for residential occupancy.(17) "Internet food service intermediary" means an entity that facilitates the sale of home-cooked meals offered by a microenterprise home kitchen operation through the entity's digital network.(18)(a) "Microenterprise home kitchen operation" means a food facility that is operated by a person in the person's primary domestic residence where food is stored, handled, prepared for, and preparedmay forbe served to, consumers.(b) "Microenterprise home kitchen operation" does not include a cottage food operation as defined in chapter 69.22 RCW.(19) "Third-party delivery service" means an outsourced entity that provides delivery logistics of purchased meals from vendor to consumer.NEW SECTION.  Sec.

A new section is added to chapter 43.20 RCW to read as follows:(1) The state board shall developadopt andrules beginfor athe pilotauthorization, programoperation, toand allowregulation forof microenterprise home kitchen operations.

The state board ismay authorizeddelegate toits permitrule-making upauthority under this section to fiftythe microenterprisesecretary and may rescind such delegated authority.(2) Microenterprise home kitchen operations duringmay engage in one or more of the firstfollowing yearactivities, subject to rules adopted pursuant to this section:(a) The direct sale to consumers of food products to be consumed on the program,premises andof upthe microenterprise home kitchen;(b) The direct sale to oneconsumers hundredof additionalfood products to be consumed at a location other than the premises of the microenterprise home kitchen operationsoperation, eachwhether yeardelivered afterdirectly to the firstconsumer year.by the microenterprise home kitchen or by an intermediary;(c) Cooking classes, and similar educational experiences, that take place on the premises of the microenterprise home kitchen operation;

Theand(d) permitCatering activities in which a specific menu and amount of food is prepared on the premises of the microenterprise home kitchen operation for service to a customer at a different location.(3) Rules adopted pursuant to this section must beprovide issuedthat bymicroenterprise home kitchen operations are subject to the statefollowing board,restrictions:(a) Food preparation may not involve processes that require a hazard analysis critical control point plan, as specified in partnershipWAC with246-215-08210 as it existed on May 21, 2019, the localproduction, healthservice, jurisdiction.(2)or Thesale stateof boardraw shallmilk adoptor rulesraw formilk products, as identified in RCW 15.36.012, or the authorization,service operation,or sale of raw oysters;(b) The operation may sell no more than thirty individual meals per day and regulationno more than one hundred fifty individual meals per week;(c) The operation may not engage in indirect sales to consumers;(d) Food products prepared in a microenterprise home kitchen may not be delivered outside of the state by the operator of the microenterprise home kitchen operationsunless allowed in the state of delivery;(e) Food produced in a microenterprise home kitchen operation may not be delivered by Julya 1,third-party 2022.delivery service;

Theand(f) stateAn boardinternet mayfood delegateservice itsintermediary rule-makingmust authorityconspicuously underpost thisany sectionfees toassociated thewith secretarytheir digital network in high school equivalent English and maySpanish, rescindas suchwell delegatedas authority.(3)whether Microenterprisethey offer or provide liability insurance, and notify microenterprise home kitchen operationsoperators mayin engagewriting inthirty onedays orin moreadvance of theany followingfee activities,change subjectexceeding toa rulestwo percent increase.(4) Rules adopted pursuant to this section:(a)section may include, but are not limited to, the following requirements:(a) The directrestrictions saleprovided toin consumerssubsection (3) of foodthis productssection;(b) toThe beapplication consumedfor atand arenewal locationof otherpermits thanas theprovided premisesin section 3 of thethis microenterpriseact;(c) homeInspections kitchenas operation,provided whetherin deliveredsection directly5 toof thethis consumeract;(d) bySanitary procedures;(e) Facility, equipment, and utensil requirements;(f) Labeling specificity beyond the microenterpriserequirements homeof kitchenthis orsection;(g) byRequirements anfor intermediary;clean water sources and waste and wastewater disposal;

and(b)and(h) CateringRequirements activitiesfor inwashing which a specific menu and amountother ofhygienic foodpractices.(5) is prepared on the premises of the microenterprise home kitchen operation for service to a customer at a different location.(4) Rules adopted pursuant to this section must providespecify that microenterprise home kitchen operations are subjectexempt tofrom the following restrictions:(a)provisions Foodof preparationthe mayfood notservice involvecode, processeschapter that246-215 requireWAC, a hazard analysis critical control point plan, as specified in WAC 246-215-08210 as it existed on May 21, 2019,2019:(a) theHandwashing production,facilities service,requirements, orprovided salethat of raw milk or raw milk products, as identified in RCW 15.36.012, or the service or sale of raw oysters;(b) The operation may sell no more than thirty individual meals or meal equivalent portions per day and no more than one hundred fifty individual meals or meal equivalent portions per week;(c) The operation has no more than eighty thousand dollars in gross annual sales;(d) The operation may not engage in indirect sales to consumers;(e) Food products prepared in a microenterprisesink home kitchen may not be delivered outside of the state by the operator of the microenterprise home kitchen unless allowed in the state of delivery;(f) Food produced in a microenterprise home kitchen operation may not be delivered by a third-party delivery service;(g) An internet food service intermediary must conspicuously post any fees associated with theirone digital network in high school equivalent English and Spanish, must offer or provide liability insurance, and notify microenterprise home kitchen operators in writing thirty days in advance of any fee change exceeding a two percentlarge increase;(h)tubs Theplaced operationnext must be covered by a liability insurance policy, in an amount not less than five hundred thousand dollars, which may be adjusted by the state board or department to reflectit inflation,is thatused would cover any incidents arising from the sale or consumption of food, including protection for consumerswashing, forrinsing, injuriesand arisingsanitizing; from a foodborne illness;

and(i) The operation must post any inspection scores, grades, or other evaluation records required by the local health jurisdiction at the entry of the operation during business hours and on any internet page or internet food service intermediary that is offering the operation's food for sale.(5) Rules adopted pursuant to this section may include, but are not limited to, the following requirements:(a) The restrictions provided in subsection (3) of this section;(b) The application for and renewal of permits as provided in section 3 of this act;(c) Inspections as provided in section 5 of this act;(d) Sanitary procedures;(e) Facility, equipment, and utensil requirements;(f) Labeling specificity beyond the requirements of this section;(g) Requirements for clean water sources and waste and wastewater disposal;

and(h) Requirements for washing and other hygienic practices.(6) Rules adopted pursuant to this section must specify that microenterprise home kitchen operations are exempt from the following provisions of the food service code, chapter 246-215 WAC, as it existed on May 21, 2019:(a) Handwashing facilities requirements, provided that a sink with one or two large tubs placed next to it is used for washing, rinsing, and sanitizing;

Active controls may include presence of the permittee or an employee or use of child or pet barriers;(g) Limitations on outdoor display and sale of foods;(h) Requirements to provide clean drinking cups and tableware for second portions and beverage refills;(i) Requirements pertaining to the characteristics and certification of utensils and equipment, provided that the utensils and equipment are designed to retain their characteristic qualities under normal use conditions;(j) Requirements pertaining to the characteristics, construction, and multiuse of food-contact and nonfood-contact surfaces, provided that food contact surfaces are smooth, easily cleanable, and in good repair;(k) Requirements pertaining to the characteristics, construction, and disassembly of clean in place equipment;(l) Limitations on the use of wood as a food contact surface and in connection with other equipment;(m) Any requirement relating to ventilation, provided that gases, odors, steam, heat, grease, vapors, and smoke are able to escape from the kitchen, unless a serious risk of fire exists;(n) 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;(o) Requirements pertaining to the installation of fixed, floor-mounted, and table-mounted equipment;(p) Dedicated laundry facility requirements, provided that linens used in connection with the microenterprise home kitchen operation must be laundered separately from the household and other laundry;(q) Requirements pertaining to water, plumbing, drainage, and waste, provided that microenterprise home kitchen operations that have a private water supply have the supply tested at least sixty days prior to permitting and at least annually thereafter and demonstrate through a written record of testing that the water supply is potablepotable;(r) and provided that microenterprise home kitchen operations that have a private on-site sewage system have had the system inspected within one year prior to permitting;(r) Any requirement that a microenterprise home kitchen operation 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;(s) Light intensity, light source, and lightbulb requirements, provided that food preparation areas are well lighted by natural or artificial light whenever food is being prepared;(t) 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, provided that 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;(u) Limitations on the presence and handling of animals, such as domestic, service, or patrol animals, provided that a pet control plan that precludes pet entry or access to all areas of the microenterprise home kitchen operation during food cooking or preparation is in place;(v) Requirements pertaining to floor, wall, and ceiling surfaces, provided that 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;settings;(w) Any local evaluation or grading system for food facilities;

and(w)and(x) All prohibitions and limitations on the use of a kitchen in a private home as a food facility, provided that food is not prepared in designated sleeping quarters.

A new section is added to chapter 43.20 RCW to read as follows:(1) A microenterprise home kitchen operation must obtain a permit from the state department of health, in partnership with the local health jurisdiction,board on forms developed by the local health jurisdiction.board.

The local health jurisdictionboard may require a microenterprise home kitchen operation to renew its permit annually.

All applications for permits and permit renewals must be made on forms developed by the local health jurisdictionboard and be accompanied by an inspection fee as provided in section 4 of this act.(2) As part of the application for a permit to operate as a microenterprise home kitchen operation, an applicant shall submit to the local health jurisdictionboard written standard operating procedures that include all of the following information:(a) All food types or products that will be handled;(b) The proposed procedures and methods of food preparation and handling;(c) Procedures, methods, and schedules for cleaning utensils, equipment, and for the disposal of refuse;(d) How food will be maintained at the required holding temperatures pending pickup by consumer or during delivery if delivered by the operator;

The listed days and times are provided only for informational purposes and are not binding on the permit-holder's actual operations.(3) Operating plans must be made on forms developed by the local health jurisdictionboard and be accompanied by a review fee as provided in section 4 of this act.(4) A microenterprise home kitchen operation permitted under this section must include a signed document attesting, by opting to become permitted, that the permitted microenterprise home kitchen operator expressly grants to the local health jurisdictionboard the right to enter the permitted area of the domestic residence housing the microenterprise home kitchen operation for the purposes of inspections pursuant to section 4 of this act.

Under ordinary circumstances, forty-eight hours advance notice provided at least two business days prior is considered to be reasonable advance notice for purposes of this section.(5) For purposes of permitting, the permitted area includes the home kitchen, on-site consumer eating area, food storage, utensils and equipment, toilet room, janitorial or cleaning facilities, outdoor cooking facilities, and refuse storage area.

Food operations may not be conducted outside of the permitted areas.(6)(a) The local enforcement agency shall issue a permit after an initial inspection and review of the microenterprise home kitchen operation's standard operating procedure have determined that the proposed microenterprise home kitchen operation and its method of operation comply with the requirements of this chapter.(b) The local health jurisdictionboard may not require a microenterprise home kitchen operation to comply with food safety requirements that are different from, or in addition to, the requirements of this chapter.(7) In addition to the provision of any information required by the local health jurisdictionboard on forms developed under subsection (1) of this section and the payment of all fees, an applicant for a permit or a permit renewal as a microenterprise home kitchen operation must also provide documentation that all individuals to be involved in the preparation of microenterprise home kitchen foods have secured a food and beverage service worker's permit under chapter 69.06 RCW.(8) A permit, once issued, is nontransferable.

A new section is added to chapter 43.20 RCW to read as follows:(1) The permitted area of a microenterprise home kitchen operation must be inspected for basic hygiene by the local health jurisdictionboard before initial permitting under section 3 of this act and may, at the discretion of the local health jurisdiction,board, be inspected up to once per year after initial permitting.

In addition, the local health jurisdictionboard may inspect the permitted area of a microenterprise home kitchen operation, as defined in section 3 of this act, at any time in response to a foodborne outbreak or other public health emergency.

The authority of a local health jurisdictionboard to inspect a microenterprise home kitchen operation includes the authority to inspect any records required to be kept under the provisions of this chapter.

For any inspection, the local health jurisdictionboard shall document the reason for the inspection, shall maintain such documentation on file with the microenterprise home kitchen operation's permit, and shall provide the reason for the inspection in writing to the operator of the microenterprise home kitchen operation.(2) When a local health jurisdictionboard conducts a basic hygiene inspection, the local health jurisdictionboard shall, at a minimum, inspect for the following:(a) That the permitted microenterprise home kitchen operator understands that no person other than the permittee, or a person under the direct supervision of the permittee, may be engaged in the processing, preparing, packaging, or handling of any microenterprise home kitchen food products or be in the home kitchen during the preparation, packaging, or handling of any microenterprise home kitchen food products;(b) That no microenterprise home kitchen food preparation, packaging, or handling is occurring in the microenterprise home kitchen concurrent with any other domestic activities such as family meal preparation, dishwashing, clothes washing or ironing, kitchen cleaning, or guest entertainment, except that this subsection (2)(b) may not be construed so as to prohibit a microenterprise home kitchen operation from offering cooking classes within the home kitchen;(c) That no infants, small children, or pets are in the microenterprise home kitchen during the preparation, packaging, or handling of any microenterprise home kitchen food products;(d) That all food contact surfaces, equipment, and utensils used for the preparation, packaging, or handling of any microenterprise home kitchen food products are washed, rinsed, and sanitized before each use;(e) That all food preparation and food and equipment storage areas are maintained free of rodents and insects;

Under ordinary circumstances, forty-eight hours advance notice provided at least two business days prior is considered reasonable for purposes of this section.(4) Should the local health jurisdictionboard be denied access to the permitted area of a domestic residence housing a microenterprise home kitchen operation where access was sought for the purposes of enforcing or administering this chapter, the local health jurisdictionboard may:(a) Issue a closure notice to be posted on the premises in a conspicuous location during normal business hours of the operation for potential patrons and require that either the production or sale, or both, of food products cease immediately;

and(b) Apply to any court of competent jurisdiction for a search warrant authorizing access to the permitted area of a domestic residence housing a permitted microenterprise home kitchen operation, upon which the court may issue a search warrant for the purposes requested.(5) The local health jurisdictionboard may charge a fee for issuing or renewing microenterprise home kitchens as authorized by RCW 70.05.060.(6) Access provided under this section is limited to the permitted area of the microenterprise home kitchen operation, during the posted operating hours of the microenterprise home kitchen operation, and solely for the purpose of enforcing or administering this chapter.NEW SECTION.  Sec.

A new section is added to chapter 43.20 RCW to read as follows:(1) When a local health jurisdictionboard determines that any person is engaging in a microenterprise home kitchen operation without a valid permit issued under section 3 of this act, or an operator of a microenterprise home kitchen operation is violating any provision of this chapter or any rule adopted under this chapter, the local health jurisdictionboard may initiate one, or a combination of one or more, of the following compliance methods:(a) Holding an administrative conference with the operator of the microenterprise home kitchen operation, which may include, as appropriate, the issuance of a warning and the offer of technical assistance;(b) Placing the microenterprise home kitchen operation on probation, which may include setting conditions for continued operation of the microenterprise home kitchen operation during the probation period and, if the individual is operating without a valid permit, an administrative fine;(c) Suspending the permit of the microenterprise home kitchen operation;(d) Revoking the permit of the microenterprise home kitchen operation;

A new section is added to chapter 43.20 RCW to read as follows:(1) After conducting a hearing, the local health jurisdictionboard may deny, suspend, or revoke any permit provided for in this chapter if it is determined that a permittee has committed any of the following acts:(a) Refused, neglected, or failed to comply with the provision of this chapter, any rule adopted to administer this chapter, or any lawful order of the local health jurisdiction;(b)board;(b) Refused, neglected, or failed to keep and maintain records required by this chapter or to make the records available when requested pursuant to the provisions of this chapter;(c) Consistent with section 4 of this act, refused the local health jurisdictionboard access to the permitted area of a domestic residence housing a microenterprise home kitchen operation for the purpose of carrying out the provisions of this chapter;(d) Consistent with section 4 of this act, refused the local health jurisdictionboard access to any records required to be kept under the provisions of this chapter;

or(e) Exceeded the meal preparation limits provided in section 2 of this act.(2) The local health jurisdictionboard may summarily suspend a permit issued under this chapter if the health officer or designee finds that a microenterprise home kitchen operation is operating under conditions that constitute an immediate danger to public health or if the local health jurisdictionboard is denied access to the permitted area of a domestic residence housing a microenterprise home kitchen operation and records where the access was sought for the purposes of enforcing or administering this chapter.NEW SECTION.  Sec.

A new section is added to chapter 70.54 RCW to read as follows:The department of health shall compile and maintain, in a manner and format readily accessible by the public, statistics related to the number and distribution of microenterprise home kitchen operations permitted pursuant to section 3 of this act.NEWact.--- SECTION.  Sec.END ---

11.

In compliance with RCW 43.01.036 and by December 10, 2021, the state department of health must submit a report to the legislature reviewing the program adopted in this act and providing recommendations for necessary legislation regarding the program adopted in this act.NEW SECTION.  Sec.

12.

This act expires June 30, 2023.--- END ---