Loading...
Item 06 - Cottage Food Industry & Home Occupation Uses - Staff Report & Exhibits 1-2TOWN OF LOS GATOS ITEM NO: 6 PLANNING COMMISSION STAFF REPORT Meeting Date: October 14, 2015 PREPARED BY: APPLICATION NO: LOCATION: APPLICANT: CONTACT: APPLICATION SUMMARY: Kimberly D. Castro, Special Projects Manager kcastro @losgatosca.gov Town Code Amendment A-13-002 Town-wide Town ofLos Gatos Kimberly Castro, Special Projects Manager Public Hearing to consider adoption of amendments to Section 29.10.09025 of Chapter 29 (Zoning Regulations -Home Occupations) of the Town Code to include cottage food indu stry businesses and additional prohibited Home Occupation uses. RECOMMENDATION: Forward to Town Council with a recommendation for adoption. CEQA: FINDINGS: ACTION : EXHIBITS: It has been determined that there is no possibility that this project will have a significant impact on the environment; therefore , the project is not subject to the California Environmental Quality Act [Section 15061 (b) (3)] • Find that there is no possibility that this project will have a significant impact on the environment; therefore, the project is not subject to the California Environmental Quality Act [Section 15061 (b) (3)]. • The Planning Commission must make a finding that the Town Code amendments are consistent with the General Plan if the recommendation is for adoption. Recommendation to Town Council. 1. State Assembly Bill -AB1616 (20 pages) 2. Draft Town Code Amendments-Chapter 29 Home Occupations Planning Commission Staff Report-Page 2 Ordinance for Home Occupations/ A-13-002 October 14,2015 BACKGROUND: The Town Council's Strategic Goals for 2014-2016 includes an amendment to the Zoning Ordinance for Home Occupation Permits (Chapter 29). In August , the Council completed its 2015-2017 Strategic Goals , including the completion of items in progress such as this. State Assembly Bill AB 1616 (Exhibit 1) was signed into law in 2012 and includes cottage food production as a permitted home occupation use (home based businesses) for residential property. Cottage food production is identified as food that is home made . Other names are "artisanal food ," "slow food ," "locally based food ," or "urban agriculture." The cottage food industry seeks to connect food to local communities , promote small business operations, and foster environmental sustainability. In all cases, cottage food production should maintain the integrity of the neighborhood. The Home Occupation provisions regulate the conditions, uses, and types of home occupations residents can have in their homes with a permit. In the California Health and Safety Code, cottage food operations may operate on a residential property zoned for those purposes and must have a permit from the County of Santa Clara Department of Environmental Health and a Town business license. Home Occupation compliance requires a Home Occupation permit; it restricts several occupations and strives to maintain neighborhood integrity by regulating the number of vehicles, machinery, parking, and prohibiting uses that could generate loud noise or are better suited in other z ones. The proposed Town Code amendment is structured to implement AB 1616 for cottage food operations. Under the Town 's current Code, the cottage food industry is not addressed . The proposed revisions are modeled after the cities of Morgan Hill , Mountain View , and San Jose and the County of Santa Clara. In preparation of this proposed amendment, staff also identified clarifications for the prohibited uses for home occupations. The Town 's current Home Occupation provi sions were originally adopted by the Council in 1976, modified in 1977 , and subsequently amended in 2013. The proposed Town Code amendment would implement the requirements of AB 1616. DISCUSSION: To implement recent State law , three cities (Morgan Hill , Mountain View and San Jose) and the County of Santa Clara have updated their local codes to include the cottage food industry. The proposed Ordinance (Exhibit 2) is based on the work of these other jurisdictions. The major features and amendments of the ordinance are: inclusion of cottage food operations as a home occupation and additions to the prohibited uses to add food catering. Exhibit 2 provides the full text of Chapter 29 with the proposed revisions and proposed language underlined. There are no proposed deletions. The Community Development Director is given discretion to approve, deny and revoke any Home Occupation Permits under the provisions of the current and proposed ordinance. Any appeals would be heard by the Planning Commission and follow the public noticing requirements as set forth in the Town Code and require the payment of appeal fees as established Planning Commission Staff Report -Page 3 Ordinance for Home Occupations/A-13-002 October 14, 2015 by resolution of the Town Council. The Planning Commission's deci sion can also be appealed to the Town Co uncil. CEQA DETERMINATION: It has been determined that there is no possibility that this project will have a significant impact on the environment; therefore, the project is not subject to the California Environmental Quality Act [Section 15061 (b) (3)]. PUBLIC COMMENTS: No public comments have been received at the time of this report preparation. CONCLUSION AND RECOMMENDATION: A. Conclusion The proposed amendments to Chapter 29 of the Town Code are recommended to align the Town Code with State law and to update provisions of the Town Code to include clarity for prohibited Home Occupation uses. B. Recommendation For the reasons discussed in this report, staff recommends that the Planning Commission forward the draft Ordinance to the Town Council with a recommendation for adoption. The Commission should also include any comments or recommended changes to the draft Ordinance in taking the following actions: 1. Find that there is no possibility that this project will have a significant impact on the environment; therefore, the project is not subject to the California Environmental Quality Act [Section 15061 (b) (3)]; and 2. The Planning Commission must make a finding that the Town Code amendments are consistent with the General Plan if the recommendation is for adoption. 3. Forward a recommendation to Town Council for adoption of the Town Code amendments to Section 29.10.09025. Planning Commission Staff Report -Page 4 Ordinance for Home Occupations/A-13-002 October 14, 2015 ALTERNATIVE: Due to the state mandate, there are no alternatives for Planning Commission consideration . Prepared by: Kimberly D . Castro Special Projects Manager N :\DEY\PC REPORTS\20 15\A -13-002Ho me0ccupati on .docx Laurel R. Prevetti Town Manager/Community Development Director BILL NUMBER: AB 1616 CHAPTERED BILL TEXT CHAPTER 415 FILED WITH SECRETARY OF STATE SEPTEMBER 21,2012 APPROVED BY GOVERNOR SEPTEMBER 21,2012 PASSED THE SENATE AUGUST 30, 2012 PASSED THE ASSEMBLY AUGUST 30,2012 AMENDED IN SENATE AUGUST 30, 2012 AMENDED IN SENATE AUGUST 24, 2012 AMENDED IN SENATE AUGUST 21, 2012 AMENDED IN SENATE JULY 3, 2012 AMENDED IN ASSEMBLY MAY 3, 2012 AMENDED IN ASSEMBLY APRIL 25, 2012 AMENDED IN ASSEMBLY APRIL 10, 2012 INTRODUCED BY Assembly Member Gatto (Coauthors: Assembly Members Fletcher, Huffman, Nestande, V. Manuel Perez, and Wieckowski) (Coauthors: Senators Correa and DeSaulnier) FEBRUARY 8, 2012 An act to add Chapter 6.1 (commencing with Section 51035) to Part 1 of Division 1 of Title 5 of the Government Code, and to amend Sections 109947,110050, 110460, 111955, EXIDBIT 1 113789, 113851, 114021,114023, 114390,114405, and 114409 of, to add Sections 113758 and 114088 to, and to add Chapter 11.5 (commencing with Section 114365) to Part 7 of Division 104 of, the Health and Safety Code, relating to food safety. LEGISLATIVE COUNSEL'S DIGEST AB 1616, Gatto. Food safety: cottage food operations. Exi sting law, the Sherman Food, Drug, and Cosmetic Law (Sherman Law), requires the State Department of Public Health to regulate the manufacture, sale, labeling, and advertising activities related to food, drugs, devices, and cosmetics in conformity with the Federal Food, Drug, and Cosmetic Act. The Sherman Law makes it unlawful to manufacture, sell, deliver, hold, or offer for sale any food that is misbranded. Food is misbranded if its labeling does not conform to specified federal labeling requirements regarding nutrition, nutrient content or health claims, and food allergens. Violation of this law is a misd e meanor. Th e existing California Retail Food Code provides for the regulation of health and sanitation standards for retail food facilities, as defined, by the State Department of Public Health. Under existing law, local health agencies are primarily responsible for enforcing the California Retail Food Code. That law exempts private homes from the definition of a food facility, and prohibits food stored or prepa red in a private home from being used or offered for sale in a food facility. That law also requires food that is offered for human consumption to be honestly presented, as s pecified. A violation of these provisions is a misdemeanor. This bill would include a cottage food operation, as defined, that is registered or has a permit within the private home exemption of the California Reta il Food Cod e . The bill would also exclude a cottage food operation from specified food processing establishment and Sherman Law requirements. This bill would require a cottage food operation to meet specified requirements relating to training, sanitation, preparation, labeling, and p ermissible types of sales and would subject a cottage food operation to inspections under specified circumstances. The bill would require a food facility that serves a cottage food product without packaging or labeling to identify it as homemade. The bill would establish various zoning and permit requirements relating to cottage food operations. This bill would incorporate additional changes in Section 113789 of the Health and Safety Code, proposed by AB 2297, to be operative only if AB 2297 and this bill are both chaptered and become effective January 1, 2013, and this bill is chaptered last. By imposing duties on local official s and adding new crimes, this bill would create a state- mandated loca l program. The California Constitution requires the state to reimburse local agencies and scho ol districts for certain costs mandated by the s tate. Statutory provisio ns establish procedures for making that reimbursement. This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason. With regard to any other mandates, this bill would provid e that, if the Commission on State Mandates determines that the bill co ntains costs so mandate d by the s tate, r eim bursement for those co sts shall be made pursua nt to the statutory provi sions noted above. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS : SECTION 1. The Legislature finds and declares all of the following: (a) Small businesses have played an important role in helping slow economies recover and prosper as an engine of job creation. During the 1990s, small businesses created th e majority of new jobs and now account for 65 perce nt of United States employment. (b) Ca lifornia, and the Unite d States as a whole, are facing g rowing obesity and obesity- related disea se epidemics. (1) Two-thirds of American a dults and nearly one-third of children a nd teens are obese or overweight, placing them at risk for developing chronic diseases such as diabetes, heart di sease, and cancer. (2) One in every nine California children, one in three teens, and ov e r half of adults are already overweight or obese. Thi s epidemic affect s virtua lly a ll Californians. (3) Th ese h ealth conditions are pre ventable a nd c urable through lifestyle choices tha t include consumption of healthy fresh food s . (c) For d ecad es, low-income a nd rural communities h ave fac e d limite d opportunities to purchase h ealthy foods. Often, without cars or co nve nient public tra n sportation options, low-income residents in these a r eas must rely for mu ch of the ir s hopping on expensive, fatty, processed foods sold at co nveni e nce and corner stores. (d) There is a growing movement in California to s upport co mmunity-based food production, sometim es r e ferred to as "cottage food," "artisan a l food ," "slow food," "locally based food," or "urban agriculture" movements. Th ese movements seek to connect food to local communities, s mall businesses, and e nvironme nta l s u stain abi lity. (e) Increased opportunities for entrepreneur development through microenterprises can help to supplement household incomes, prevent poverty and hunger, and strengthen local economies. (t) At least 32 other states have passed laws that allow small business entrepreneurs to use their home kitchens to prepare, for sale, foods that are not potentially hazardous. (g) Even some bake sales are currently illegal in California. (h) It is the intent ofthe Legislature to enact a homemade food act specifically designed to help address these challenges and opportunities. SEC. 2. Chapter 6.1 (commencing with Section 51035) is added to Part 1 of Division 1 of Title 5 of the Government Code, to read: CHAPTER 6.1. COTTAGE FOOD OPERATIONS 51035. (a) A city, county, or city and county shall not prohibit a cottage food operation, as defined in Section 113758 of the Health and Safety Code, in any residential dwellings, but shall do one of the following: (1) Cl assify a cottage food operation as a permitted use of residential property for zoning purposes. (2) Grant a nondiscretionary permit to use a residence as any cottage food operation that complies with local ordinances prescribing reasonable standards, restrictions, and requirements concerning spacing and concentration, traffic control, parking, and noise control relating to those homes. Any noise standards shall be consistent with local noise ordinances implementing the noise element of the general plan. The permit issued pursuant to this paragraph shall be granted by the zoning administrator, or if there is no zoning administrator, by the person or persons designated by the planning agency to grant these permits, upon the certification without a hearing. (3) Require any cottage food operation to apply for a permit to use a residence for its operation. The zoning administrator, or if there is no zoning administrator, the person or persons designated by the planning agency to handle the use permits, shall review and decide the applications. The use permit shall be granted if the cottage food operation complies with local ordinances, if any, prescribing reasonable standards, restrictions, and requirements concerning the following factors: spacing and concentration, traffic control, parking, and noise control relating to those homes. Any noise standards shall be consistent with local noise ordinances implementing the noise element of the general plan. The local government shall process any required permit as economically as possible. Fees charged for review shall not exceed the costs of the review and permit process. An applicant may request a verification of fees, and the city, county, or city and county shall provide the applicant with a written breakdown within 45 days of the request. The application form for cottage food operation permits shall include a statement of the applicant's right to request the written fee verification. (b) In connection with any action taken pursuant to paragraph (2) or (3) of subdivision (a), a city, county, or city and county shall do all of the following: (1) Upon the request of an applicant, provide a Jist of the permits and fees that are required by the city, county, or city and county, including information about other permits that may be required by other departments in the city, county, or city and county, or by other public agencies. The city, county, or city and county shall, upon request of any applicant, also provide information about the anticipated length of time for reviewing and processing the permit application. (2) Upon the request of an applicant, provide information on the breakdown of any individual fees charged in connection with the issuance of the permit. (3) If a deposit is required to cover the cost of the permit, provide information to the applicant about the estimated final cost to the applicant of the permit, and procedures for receiving a refund from the portion of the deposit not used. (c) Use of a residence for the purposes of a cottage food operation shall not constitute a change of occupancy for purposes of the State Housing Law (Part 1.5 (commencing with Section 17910) of Division 13 of the Health and Safety Code), or for purposes of local building and fire codes. (d) Cottage food operations shall be considered residences for the purposes of the State Uniform Building Standards Code and local building and fire codes. SEC. 3. Section 109947 of the Health and Safety Code is amended to read: 109947. "Food processing facility" means any facility operated for the purposes of manufacturing, packing, or holding processed food . Food processing facility does not include a food facility as defined in Section 113785, a cottage food operation that is registered or has a permit pursuant to Section 114365, or any facility exclusively storing, handling, or processing dried beans. SEC. 4 . Section 110050 of the Health and Safety Code is amended to read: 110050. The Food Safety Fund is hereby created as a special fund in the State Treasury. All moneys collected by the department under subdivision (c) of Section 110466 and Sections 110470, 110471, 110485, 114365, 114365.6, 111130, and 113717, and under Article 7 (commencing with Section 110810) of Chapter 5 shall be deposited in the fund, for use by the department, upon appropriation by the Legislature, for the purposes of providing funds necessary to carry out and implement the inspection provisions of this part relating to food, licensing, inspection, enforcement, and other provisions of Article 12 (commencing with Section 111070) relating to water, the provisions relating to education and training in the prevention of microbial contamination pursuant to Section 110485, and the registration provisions of Article 7 (commencing with Section 110810) of Chapter 5, and to carry out and implement the provisions of the California Retail Food Code (Part 7 (commencing with Section 113700) of Division 104). SEC. 5. Section 110460 of the Health and Safety Code is amended to read: 110460. No person shall engage in the manufacture, packing, or holding of any processed food in this state unless the person has a valid registration from the department, except those engaged exclusively in the storing, handling, or processing of dried beans. The registration shall be valid for one calendar year from the date of issue, unless it is revoked. The registration shall not be transferable. This section shall not apply to a cottage food operation that is registered or has a permit pursuant to Section 114365. SEC. 6. Section 111955 of the Health and Safety Code is amended to read: 111955. "Food processing establishment," as used in this chapter, shall mean any room, building, or place or portion thereof, maintained, used, or operated for the purpose of commercially storing, packaging, making, cooking, mixing, processing, bottling, canning, packing, slaughtering, or otherwise preparing or handling food except restaurants. "Food processing establishment" shall not include a cottage food operation that is registered or has a permit pursuant to Section 114365. SEC. 7. Section 113758 is added to the Health and Safety Code, to read: 113758. (a) "Cottage food operation" means an enterprise that has not more than the amount in gross annual sales that is specified in this subdivision, is operated by a cottage food operator, and has not more than one full-time equivalent cottage food employee, not including a family member or household member of the cottage food operator, within the registered or permitted area of a private home where the cottage food operator resides and where cottage food products are prepared or packaged for direct, indirect, or direct and indirect sale to consumers pursuant to this part. In 2013, the enterprise shall not have more than thirty-five thousand dollar ($35,000) in gross annual sales in the calendar year. In 2014, the enterprise shall not have more than forty-five thousand dollars ($45,000) in gross annual sales in the calendar year. Commencing in 2015, and each subsequent year thereafter, the enterprise shall not have more than fifty thousand dollars ($50,000) in gross annual sales in the calendar year. A cottage food operation includes both of the following: (1) A "Class A" cottage food operation, which is a cottage food operation that may engage only in direct sales of cottage food products from the cottage food operation or other direct sales venues described in paragraph (4) of subdivision (b). (2) A "Class B" cottage food operation, which is a cottage food operation that may engage in both direct sales and indirect sales of cottage food products from the cottage food operation, from direct sales venues described in paragraph ( 4) of subdivision (b), from offsite events, or from a third-party retail food facility described in paragraph (5) of subdivision (b). (b) For purposes of this section, the following definitions shall apply: (1) "Cottage food employee" means an individual, paid or volunteer, who is involved in the preparation, packaging, handling, and storage of a cottage food product, or otherwise works for the cottage food operation. An employee does not include an immediate family member or household member ofthe cottage food operator. (2) "Cottage food operator" means an individual who operates a cottage food operation in his or her private home and is the owner of the cottage food operation. (3) "Cottage food products" means non-potentially hazardous foods, including foods that are described in Section 114365.5 and that are prepared for sale in the kitchen of a cottage food operation. (4) "Direct sale" means a transaction between a cottage food operation operator and a consumer, where the consumer purchases the cottage food product directly from the cottage food operation. Direct sales include, but are not limited to, transactions at holiday bazaars or other temporary events, such as bake sales or food swaps, transactions at farm stands, certified farmers' markets, or through community-supported agriculture subscriptions, and transactions occurring in person in the cottage food operation. (5) "Indirect sale" means an interaction between a cottage food operation, a third-party retailer, and a consumer, where the consumer purchases cottage food products made by the cottage food operation from a third-party retailer that holds a valid permit issued pursuant to Section 114381. Indirect sales include, but are not limited to, sales made to retail shops or to retail food facilities where food may be immediately consumed on the premises. (6) "Private home" means a dwelling, including an apartment or other leased space, where individuals reside. (7) "Registered or permitted area" means the portion of a private home that contains the private home 's kitchen used for the preparation, packaging, storage, or handling of cottage food products and related ingredients or equipment, or both, and attached rooms within the home that are used exclusively for storage. SEC . 8. Section 113789 of the Health and Safety Code is amended to read: 113789. (a) "Food facility" means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, including, but not limited to, the following: (1) An operation where food is consumed on or off the premises, regardless of whether there is a charge for the food. (2) Any place used in conjunction with the operations described in this subdivision, including, but not limited to, storage facilities for food-related utensils, equipment, and materials. (b) "Food facility" includes permanent and nonpermanent food facilities, including, but not limited to, the following: (1) Public and private school cafeterias. (2) Restricted food service facilities. (3) Licensed health care facilities. ( 4) Commissaries. (5) Mobile food facilities . (6) Mobile support units. (7) Temporary food facilities. (8) Vending machines. (9) Certified farmers' markets, for purposes of permitting and enforcement pursuant to Section 114370. (10) Farm stands, for purposes of permitting and enforcement pursuant to Section 114375. (c) "Food facility" does not include any of the following: (1) A cooperative arrangement wherein no permanent facilities are used for storing or handling food. (2) A private home, including a cottage food operation that is registered or has a permit pursuant to Section 114365. (3) 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 not more than three days in any 90-day period. ( 4) A for-profit entity that gives or sells food at an event that occurs not more than three days in a 90-day period for the benefit of a nonprofit association, if the for-profit entity receives no monetary benefit, other than that resulting from recognition from participating in an event. (5) Premises set aside for wine tasting, as that term is used in Section 23356.1 of the Business and Professions Code and in the regulations adopted pursuant to that section, that comply with Section 118375, regardless of whether there is a charge for the wine tasting, if no other beverage, except for bottles of wine and prepackaged non potentially hazardous beverages, is offered for sale for onsite consumption and no food, except for crackers, is served. (6) Premises operated by a producer, selling or offering for sa le only whole produce grown by the producer, or shell eggs, or both, provided the sales are conducted on premises controlled by the producer. (7) A commercial food processing plant as defined in Section 111955. (8) A child day care facility, as defined in Section 1596.750. (9) A community care facility, as defined in Section 1502. (10) A residential care facility for the elderly, as defined in Section 1569.2. (11) A residential care facility for the chronically ill, which has the same meaning as a residential care facility, as defined in Section 1568.01. (12) Premises set aside by a beer manufacturer, as defined in Section 25000.2 of the Business and Professions Code, that comply with Section 118375, for the purposes of beer tasting, regardless of whether there is a charge for the beer tasting, if no other beverage, except for beer and prepackaged non potentially hazardous beverages, is offered for sale for onsite consumption, and no food, except for crackers or pretzels, is served. SEC. 8.5. Section 113789 of the Health and Safety Code is amended to read: 113789. (a) "Food facility" means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, including, but not limited to, the following: (1) An operation where food is consumed on or off the premises, regardless of whether there is a charge for the food. (2) Any place used in conjunction with the operations described in this subdivision, including, but not limited to, storage facilities for food-related utensils, equipment, and materials. (b) "Food facility" includes permanent and nonpermanent food facilities, including, but not limited to, the following : (1) Public and private school cafeterias. (2) Restricted food service facilities. (3) Licensed health care facilities, except as provided in paragraph (13) of subdivision (c). ( 4) Commissaries. (5) Mobile food facilities. (6) Mobile support units . (7) Temporary food facilities . (8) Vending machines. (9) Certified farmers' markets, for purposes of permitting and enforcement pursuant to Section 114370. (10) Farm stands, for purposes of permitting and enforcement pursuant to Section 114375. (c) "Food facility" does not include any of the following: (1) A cooperative arrangement wherein no permanent facilities are used for storing or handling food. (2) A private home, including a cottage food operation that is registered or has a permit pursuant to Section 114365. (3) 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 not more than three days in any 90-day period. ( 4) A for-profit entity that gives or sells food at an event that occurs not more than three days in a 90-day period for the benefit of a nonprofit association, if the for-profit entity receives no monetary benefit, other than that resulting from recognition from participating in an event. (5) Premises set aside for wine tasting, as that term is used in Section 23356.1 of the Business and Professions Code and in the regulations adopted pursuant to that section, that comply with Section 118375, regardless of whether there is a charge for the wine tasting, if no other beverage, except for bottles of wine and prepackaged non potentially hazardous beverages, is offered for sale for onsite consumption and no food, except for crackers, is served. (6) Premises operated by a producer, selling or offering for sale only whole produce grown by the producer, or shell eggs, or both, provided the sales are conducted on premises controlled by the producer. (7) A commercial food processing plant as defined in Section 111955. (8) A child day care facility, as defined in Section 1596.750. (9) A community care facility, as defined in Section 1502. (10) A residential care facility for the elderly, as defined in Section 1569.2. (11) A residential care facility for the chronically ill, which has the same meaning as a residential care facility, as d e fined in Section 1568.01. (12) Premises set aside by a beer manufacturer, as defined in Section 25000.2 of the Business and Professions Code, that comply with Section 118375, for the purposes of beer tasting, regardless of whether there is a charge for the beer tasting, if no other beverage, except for beer and prepackaged non potentially hazardous beverages, is offered for sale for onsite consumption, and no food, except for crackers or pretzels, is served. (13) (A) An intermediate care facility for the developmentally disabled, as defined in subdivisions (e), (h), and (m) of Section 1250, with a capacity of six beds or fewer. (B) A facility described in subparagraph (A) shall report any food borne illness or outbreak to the local health department and to the State Department of Public Health within 24 hours of the illness or outbreak. SEC. 9. Section 113851 of the Health and Safety Code is amended to read: 113851. (a) "Permit" means the document issued by the enforcement agency that authorizes a person to operate a food facility or cottage food operation. (b) "Registration" shall have the same meaning as permit for purposes of implementation and enforcement of this part. SEC. 10. Section 114021 of the Health and Safety Code is amended to read: 114021. (a) Food shall be obtained from sources that comply with all applicable laws. (b) Food stored or prepared in a private home shall not be used or offered for sale in a food facility, unless that food is prepared by a cottage food operation that is registered or has a permit pursuant to Section 114365. SEC. 11. Section 114023 of the Health and Safety Code is amended to read: 114023. Food in a hermetically sealed container shall be obtained from a food processing plant that is regulated by the food regulatory agency that has jurisdiction over the plant, or from a cottage food operation that produces jams, jellies, and preserves and that is registered or has a permit pursuant to Section 114365. SEC. 12. Section 114088 is added to the Health and Safety Code, to read: 114088. A cottage food product, as defined in Section 113758, that is served by a food facility without packaging or labeling, as described in Section 114365, shall be identified to the consumer as homemade on the menu, menu board, or other location that would reasonably inform a consumer of its homemade status. SEC. 13. Chapter 11.5 (commencing with Section 114365) is added to Part 7 of Division 104 of the Health and Safety Code, to read: CHAPTER 11.5. COTTAGE FOOD OPERATIONS 114365. (a) (1) (A) A "Class A" cottage food operation shall not be open for business unless it is registered with the local enforcement agency and has submitted a completed, self-certification checklist approved by the local enforcement agency. The self-certification checklist shall verify that the cottage food operation conforms to this chapter, including the following requirements: (i) No cottage food preparation, packaging, or handling may occur in the home kitchen concurrent with any other domestic activities, such as family meal preparation, dishwashing, clothes washing or ironing, kitchen cleaning, or guest entertainment. (ii) No infants, small children, or pets may be in the home kitchen during the preparation, packaging, or handling of any cottage food products. (iii) Kitchen equipment and utensils used to produce cottage food products shall be clean and maintained in a good state of repair. (iv) All food contact surfaces, equipment, and utensils used for the preparation, packaging, or handling of any cottage food products shall be washed, rinsed, and sanitized before each use. (v) All food preparation and food and equipment storage areas shall be maintained free of rodents and insects. (vi) Smoking shall be prohibited in the portion of a private home used for the preparation, packaging, storage, or handling of cottage food products and related ingredients or equipment, or both, while cottage food products are being prepared, packaged, stored, or handled. (B) (i) The department shall post the requirements described in subparagraph (A) on its Internet Web site. (ii) The local enforcement agency shall issue a registration number to a "Class A" cottage food operation that meets the requirements of subparagraph (A). (C) (i) Except as provided in (ii), a "Class A" cottage food operation shall not be subject to initial or routine inspections. (ii) For purposes of determining compliance with this chapter, a representative of a local enforcement agency may access, for inspection purposes, the registered area of a private home where a cottage food operation is located only if the representative has, on the basis of a consumer complaint, reason to suspect that adultered or otherwise unsafe food has been produced by the cottage food operation or that the cottage food operation has violated this chapter. (iii) Access under this subparagraph is limited to the registered area and solely for the purpose of enforcing or administering this chapter. (iv) A local enforcement agency may seek recovery from a "Clas s A" cottage food operation of an amount that does not exceed the local enforcement agency's reasonable costs of inspecting the "Class A" cottage food operation for compliance with this chapter, if the "Class A" cottage food operation is found to be in violation of this chapter. (2) (A) A "Class B" cottage food operation shall not be open for business unless it obtains a permit from the local enforcement agency in a manner approved by the local enforcement agency to engage in the direct and indirect sale of cottage food products. (B) (i) A "Class B" cottage food operation shall comply with the requirements described in clauses (i) to (vi), inclusive, of subparagraph (A) of paragraph (1) in addition to the other requirements ofthis chapter. (ii) The local enforcement agency shall issue a permit number after a n initial inspection has determined that the proposed "Class B" cottage food operation and its method of operation conform to this chapter. (C) Except as provided in this subparagraph, a "Class B" cottage food operation shall not be subject to more than one inspection per year by the local enforcement agency. (i) For pu r poses of determining compliance with this chapter, a representative of a local enforcement agency, for inspection purposes, may access the permitted area of a private home where a cottage food operation is located only if the representative has, on the basis of a consumer complaint, reason to suspect that adulterated or otherwise unsafe food has been produced by the cottage food operation, or that the cottage food operation has violated thi s chapter. (ii) Access under this subparagraph is limited to the permitted area a nd solely for the purpose of e nforcing or administering this chapter. (D) (i) A "Class B" cottage food operation shall be authorized to engage in the indirect sales of cottage food products within the county in which the "Class B" cottage food operation is permitted. (ii) A county may agree to allow a "Class B" cottage food operation permitted in another county to engage in the indirect sales of cottage food products in the county. (b) A registration or permit, once issued, is nontransferable. A registration or permit shall be valid only for the person, location, type of food sales, and distribution activity s pecified by that registration or permit, and, unless suspended or revoked for cause, for the time period indicated. 114365.2. A cottage food operation that is registered or has a permit issued pursuant to Section 114365 shall be considered a restricted food service facility for purposes of, and subject to, Sections 113953.3, 114259.5, 114285, and 114286. A cottage food operation that is registered or has a permit also shall be subject to Sections 113967, 113973, 113980, 114259.5, 114405, 114407, 114409, 114411, and 114413, and to all of the following requirements: (a) A person with a contagious illness shall refrain from work in the registered or permitted area of the cottage food operation. (b) A person involved in the preparation or packaging of cottage food products shall keep his or her hands and exposed portions of his or her arms clean and shall wash his or her hands before any food preparation or packaging activity in a cottage food operation. (c) Water used during the preparation of cottage food products shall meet the potable drinking water standards described in Section 113869, except that a cottage food operation shall not be required to have an indirect sewer connection. Water used during the preparation of cottage food products includes all of the following: (1) The washing, sanitizing, and drying of any equipment used in the preparation of a cottage food product. (2) The washing, sanitizing, and drying of hands and arms. (3) Water used as an ingredient. (d) A person who prepares or packages cottage food products shall complete a food processor course instructed by the department to protect the public health within three months of becoming registered. The course shall not exceed four hours in length. The department shall work with the local enforcement agency to ensure that cottage food operators are properly notified of the location, date, and time of the classes offered. (e) A cottage food operation shall properly label all cottage food products in compliance with the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 343 et seq.). Additionally, to the extent permitted by federal law, the label shall include, but is not limited to, all of the following: (1) The words "Made in a Home Kitchen" in 12-point type on the cottage food product's prima ry display panel. (2) The name commonly used for the food product or an adequately descriptive name. (3) The name of the cottage food operation which produced the cottage food product. (4) The registration or permit number of the "Class A" or "Class 8" cottage food operation, respectively, which produced the cottage food product and, in the case of a "Class 8 " cottage food operation, the name of the county of the local enforcement agency that issued the permit number. (5) The ingredients of the cottage food product, in descending order of predominance by weight, if the product contains two or more ingredients. 114365.5. (a) The department shall adopt and post on its Internet Web site a list of not potentially hazardous foods and their ethnic variations that are approved for sale by a cottage food operation. A cottage food product shall not be potentially hazardous food, as defined in Section 113871. (b) This list of non potentially hazardous foods shall include, but not be limited to, all of the following: (1) Baked goods without cream, custard, or meat fillings, such as breads, biscuits, churros, cookies, pastries, and tortillas. (2) Candy, such as brittle and toffee. (3) Chocolate-covered nonperishable foods, such as nuts and dried fruit. (4) Dried fruit. (5) Dried pasta. (6) Dry baking mixes. (7) Fruit pies, fruit empanadas, and fruit tamales. (8) Granola, cereals, and trail mixes. (9) Herb blends and dried mole paste. (10) Honey and sweet sorghum syrup. (11) Jams, jellies, preserves, and fruit butter that comply with the standard described in Part 150 ofTitle 21 of the Code of Federal Regulations. (12) Nut mixes and nut butters. (13) Popcorn. (14) Vinegar a nd mustard. (15) Roasted coffee and dried tea. (16) Waffle cones and pizelles. (c) (1) The State Public Health Officer may add or delete food products to or from the list described in subdivision (b), which shall be known as the approved food products list. Notice of any change to the approved food products list shall be posted on the department's cottage food program Internet Web site, to also be known as the program Internet Web site for purposes of this chapter. Any change to the approved food products list shall become effective 30 days after the notice is posted. The notice shall state the reason for the change, the authority for the change, and the nature of the change. The notice will provide an opportunity for written comment by indicating the address to which to submit the comment and the deadline by which the comment is required to be received by the department. The address to which the comment is to be submitted may be an electronic site. The notice shall allow at least 20 calendar days for comments to be submitted. The department shall consider all comments submitted before the due date. The department may withdraw the proposed change at any time by notification on the program Internet Web site or through notification by other electronic means. The approved food products list described in subdivision (b), and any updates to the list, shall not be subject to the administrative rulemaking requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. (2) The State Public Health Officer shall not remove any items from the approved food products list unless the State Public Health Officer also posts information on the program Internet Web s ite explaining the basis upon which the removed food item has been determined to be potentially hazardous. 114365.6. (a) The State Public Health Officer shall provide technical assistance, and develop, maintain, and deliver commodity-specific training related to the safe processing and packaging of cottage food products to local enforcement agencies. (b) Local enforcement agencies may collect a surcharge fee in addition to any permit fees collected for "Class 8" cottage food operations. The surcharge fee shall not exceed the reasonable costs that the department incurs through the administration of th e training described in subdivision (a) to protect the public health . The surcharge fees collecte d shall be transmitted to the department in a manner established by the department to be deposited in the Food Safety Fund. The department shall use the surcharge fees only to J develop and deliver the training described in subdivision (a) to local enforcement agency personnel on an ongoing basis. SEC. 14. Section 114390 of the Health and Safety Code is amended to read: 114390. (a) Enforcement officers shall enforce this part and all regulations adopted pursuant to this part. (b) (1) For purposes of enforcement, any authorized enforcement officer may, during the facility's hours of operation and other reasonable times, enter, inspect, issue citations to, and secure any sample, photographs, or other evidence from a food facility, cottage food operation, or any facility suspected of being a food facility or cottage food operation, or a vehicle transporting food to or from a retail food facility, when the vehicle is stationary at an agricultural inspection station, a border crossing, or at any food facility under the jurisdiction of the enforcement agency, or upon the request of an incident commander. (2) If a food facility is operating under an HACCP plan, the enforcement officer may, for the purpose of determining compliance with the plan, secure as evidence any documents, or copies of documents, relating to the facility's adherence to the HACCP plan. Inspection may, for the purpose of determining compliance with this part, include any record, file, paper, process, HACCP plan, invoice, or receipt bearing on whether food, equipment, or utensils are in violation of this part. (c) Notwithstanding subdivision (a), an employee may refuse entry to an enforcement officer who is unable to present official identification showing the enforcement officer's picture and enforcement agency name. In the absence of the identification card, a business card showing the enforcement agency's name plus a picture identification card such as a driver's license shall meet this requirement. (d) It is a violation of this part for any person to refuse to permit entry or inspection, the taking of samples or other evidence, access to copy any record as authorized by this part, to conceal any samples or evidence, withhold evidence concerning them, or interfere with the performance of the duties of an enforcement officer, including making verbal or physical threats or sexual or discriminatory harassment. (e) A written report of the inspection shall be made and a copy shall be supplied or mailed to the owner, manager, or operator of the food facility. SEC. 15. Section 114405 of the Health and Safety Code is amended to read: 114405. (a) A permit may be suspended or revoked by a local enforcement officer for a violation of this part. Any food facility or cottage food operation for which the permit has been suspended shall close and remain closed until the permit has been reinstated. Any food facility or cottage food operation for which the permit has been revoked shall close a nd remain closed until a new permit has been issued. (b) Whenever a local enforcement officer finds that a food facility or cottage food operation is not in compliance with the requirements of this part, a written notice to comply shall be issued to the permitholder. If the permitholder fails to comply, the local enforcement officer shall issue to the permitholder a notice setting forth th e acts or omissions with which the permitholder is charged, and informing him or her of a right to a hearing, if requested, to show cause why the permit should not be suspended or revoked. A written request for a hearing shall be made by the permitholder within 15 calendar days after receipt of the notice. A failure to request a hearing within 15 calendar days after receipt of the notice shall be deemed a waiver of the right to a hearing. When circumstances warrant, the hearing officer may order a hearing at any reasonable time within this 15-day period to expedite the permit suspension or revocation process. (c) The hearing shall be held within 15 calendar days of the receipt of a request for a hearing. Upon written request of the permitholder, the hearing officer may postpone any hearing date, if circumstances warrant the action. SEC. 16. Section 114409 of the Health and Safety Code is amended to read: 114409. (a) If any imminent health hazard is found, unless the hazard is immediately corrected, an enforcement officer may temporarily suspend the permit and order the food facility or cottage food operation immediately closed. (b) Whenever a permit is suspended as the result of an imminent health hazard, the enforcement officer shall issue to the permitholder a notice setting forth the acts or omissions with which the permitholder is charged, specifying the pertinent code section, and informing the permitholder of the right to a hearing. (c) At any time within 15 calendar days after service of a notice pursuant to subdivision (b), the permitholder may request in writing a hearing before a hearing officer to show cause why the permit suspension is not warranted. The hearing shall be held within 15 calendar days of the receipt of a request for a hearing. A failure to request a hearing within 15 calendar days shall be deemed a waiver of the right to a hearing. SEC. 17. Section 8.5 of this bill incorporates amendments to Section 113789 of the Health and Safety Code proposed by both this bill and Assembly Bill 2297. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2013, (2) each bill amends Section 113789 of the Health and Safety Code, and (3) this bill is enacted after Assembly Bill2297, in which case Section 8 of this bill shall not become operative. SEC. 18. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infra ction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B ofthe California Constitution. However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. ORDINANCE NO. Draft Ordinance s ubject modification by Planning Commission based on deliberations and direction ORDINANCE OF THE TOWN OF LOS GATOS AMENDING SECTION 29.10.09025 OF THE LOS GATOS TOWN CODE TO ALLOW COTTAGE FOOD INDUSTRY BUSINESSES AS HOME OCCUPATION BUSINESSES AS REQUIRED BY ASSEMBLY BILL 1616 AND TO INCLUDE ADDITIONAL PROHIBITED HOME OCCUPATION USES WHEREAS, the Town Council of Los Gatos seeks to implement AB 1616 to allow cottage food industry businesses as home occupation businesses; and WHEREAS, the Town Council wishes to include additional prohibited home occupation uses; and NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS FOLLOWS: SECTION I Los Gatos Town Code 29.10.09025 is hereby amended to read as follows: Sec. 29.10.09025.-Home occupations. (a) Scope. Home occupations are allowed in any dwelling in any zone, even if the dwelling is nonconforming, subject to the following regulations: (1) No premises shall be used for a home occupation unless the user has a home occupation permit. (2) There shall be no employees other than members of the resident family. (3) There shall be no materials or mechanical equipment used which are not such as would be employed in normal household or hobby activities. (4) The home occupation shall not involve the presence of more than (1) customer on the premises at any time. (5) The home occupation shall not cause pedestrian or vehicular traffic or the parking of vehicles either on the premises or on public or private streets or sidewalks adjacent to the premises in numbers or volumes which exceed that which is usual in the Town at comparable places of residence where there is no home occupation. (6) There shall be no use of commercial vehicles for delivery of materials to or from the premtses. (7) There shall be no storage of materials or supplies indoors or outdoors in a manner which is visible from adjacent premises or public ways. (8) There shall be no advertising sings or structures. EXHIBIT 2 (9) The home occupation shall not be conducted in such a way as to decrease the total number of required or available off-street parking spaces for the premises. (I 0) Cottage food operations are allowed as home occupations so long as the cottage food operations are in compliance with the requirements for those operations contained in the California Government Code and with the California Health and Safety Code, as amended. Cottage food operations are limited to the registered or permitted area by the County of Santa Clara Department of Environmental Health. (1 0) OJ..). The home occupation shall not alter the single-family residential character of any portion of the premises. (11) .{11} The home occupation shall not result in the emission of noise, dust , smoke, odor or radiation which results in interference with radio or television reception. (12) (.1l) The foregoing subsections (2) through ( 14) expressly prohibit acts and conditions, are not an exclusive listing of the limitations on the conduct of home occupations, and no home occupations shall be conducted in a manner inconsistent with the definition of "home occupation" set out in section 29.10.020 of this Code to the effect that the u se shall not be discernible from the exterior of the dwelling unit. (b) Statement. The Planning Director may, before issuing a permittee, require that each applicant sign a statement certifying that the home occupation will comply with the provisions of the definition of"home occupation" in section 29.10.020 and subsection (1) ofthis sectio n , but is not required to rely on such statement, and may make such investigation as the Planning Director deems necessary to determine whether the home occupation will be conducted in compliance with thi s section. (c) Denial. The Planning Director shall not issue a home occupation permit where the Planning Director finds that the home occupation will not comply with the provisions of the definition of "home occupation" in section 29.10.020 and subsection (1) of this section. (d) In vestigation. The Planning Director shall revoke any home occupation permit when this chapter or a condition of the permit is violated. (e) Revocation. Before revoking a home occupation permit, the Planning Director shall giv e the permittee ten (1 0) days ' notice in writing that revocation is under consideration, shall consider whatever evidence the permittee wishes to present to contest the revocation , and shall give permittee written notice of the decision. Both notices shall be mailed to the address given by the permittee in the application of the home occupation permit or such other address as the permittee has provided the Planning Director. (f) Prohibited Uses. The following u ses are prohibited: ( l) Retail sales of firearms , ammunition and/or destructi ve devices and services. (2) Medical offices/uses. 2 (3) Contractor/contracting services which have crews that meet on site prior to traveling to another job site, or which requires the storage of building materials or equipment on site, or which will park or store vehicles or construction equipment on site. ( 4) On-site dining for cottage food operations. (5) Food catering, excluding cottage food operations that are allowed under and fully comply with the requirements therefore contained win the California Government Cod and the California Health and Safety Code, together with applicable regulations is promulgated thereunder, as amended. SECTION II The Town Council finds and determines that the adoption of this ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) per CEQA Guidelines under the General Rule [Section 15061 (b )(3)], which sets forth that the CEQA applies only to projects which have the potential for causing a significant effect on the environment. It can be seen with certainty that the proposed Town Code text amendments will have no significant negative effect on the environment. SECTION III If any prov1s10n of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. This Town Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the ordinance be enforced. SECTION IV Except as expressly modified in this Ordinance, all other sections set forth in the Los Gatos Town Code shall remain unchanged and shall be in full force and effect. 3 SECTIONV This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within fifteen ( 15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the Town Council and a certified copy shall be posted in the office of the Town Clerk, pursuant to GC 36933(c)(l). COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN ATTEST: SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS , CALIFORNIA CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS LOS GATOS , CALIFORNIA 4