HB1591 HD1

SECTION 1. The legislature finds that, although Hawaii has many talented chefs and cooks who aspire to open their own food establishments, opening a restaurant is a risky and expensive proposition. The median cost of opening a restaurant in the United States is about $375,000 but may be significantly higher in Hawaii due to the State's higher cost of living. Once the restaurant is in operation, the day-to-day operating costs, including utilities, rent, insurance, and employees, may be substantial. Other food venture options such as opening a food truck or utilizing a commercial kitchen to prepare food for sale may also have very high start-up and overhead costs and present barriers to entry for residents.

The legislature further finds that creating a mechanism for entrepreneurs to open a home cooking venture will significantly lower the barriers to entry that these individuals face and promote a more equitable food system. Data from the San Diego Microenterprise Home Kitchen Operation program found that of the total number of microenterprise home kitchens established, fifty-eight per cent were women-owned and seventy per cent were minority-owned, indicating a notably significant and positive impact on these demographics. These microenterprise home kitchens enable individuals to safely operate a cooking business from their home kitchens while meeting applicable food safety requirements. The start-up costs for these businesses are significantly less than the costs associated with opening a standalone restaurant, even when factoring in cost items such as permitting, inspection fees, and liability insurance. By making it easier to establish a new business, more individuals will be able to earn a living doing something they love while building wealth and contributing to and growing the local economy. This includes persons such as stay-at-home parents and caregivers. For example, a stay‑at‑home parent could prepare and deliver ready-to-eat lunches to customers while their children are at school, earning an income to supplement their cost of living.

The legislature further finds that microenterprise home kitchens may be operated in a manner that ensures food safety. Specifically, particular safeguards may be implemented to protect public health, including the creation of sanitation, equipment, and maintenance requirements; a requirement that the microenterprise home kitchen pass a thorough inspection by the department of health before beginning operation; periodic future inspections, including at times when the department of health suspects that the microenterprise home kitchen is the source of an adulterated food or of an outbreak of illness caused by a contaminated food; a prohibition on the preparation of certain high-risk foods; and a prohibition of the on-site consumption of food by customers.

Accordingly, the purpose of this Act is to:

(1) Authorize and establish a regulatory framework for microenterprise home kitchens;

(2) Authorize the department of health to establish minimum health and food safety standards applicable to the operation of microenterprise home kitchens; and

(3) Appropriate funds to the department of health for operating and implementation costs.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to title 19 to be appropriately designated and to read as follows:

"Chapter

MICROENTERPRISE HOME KITCHENS

§ -1 Definitions. As used in this chapter:

"Department" means the department of health.

"Food" means:

(1) A raw, cooked, or processed edible substance; ice; nonalcoholic beverage; or ingredient used or intended for use or for sale, in whole or in part, for human consumption; or

(2) Chewing gum.

"Hazard analysis and critical control points plan" means a management system in which food safety is addressed through the analysis and control of biological, chemical, and physical hazards from raw material production, procurement, and handling to manufacturing, distribution, and consumption of the finished product.

"Microenterprise home kitchen" or "home kitchen" means a non-commercial kitchen facility located in a private home where ready-to-eat food is handled, stored, prepared, or offered for sale. "Microenterprise home kitchen" or "home kitchen" does not include:

(1) A catering operation;

(2) A cottage food operation;

(3) A food truck;

(4) A bed and breakfast; or

(5) A state-licensed care facility.

"Microenterprise home kitchen permit" means a permit issued by the department to an operator for the purpose of operating a microenterprise home kitchen.

"Operator" means a person who resides in a private home and manages or controls a microenterprise home kitchen located in that private home.

"Ready-to-eat" means:

(1) Cooked animal food;

(2) Raw fruits and vegetables that are washed;

(3) Fruits and vegetables that are cooked for hot holding;

(4) A time or temperature control food that is cooked to the temperature and time required for the specific food, in accordance with rules adopted by the department pursuant to chapter 91; or

(5) A bakery item for which further cooking is not required for food safety.

"Time or temperature control food" means food that requires time or temperature controls for safety to limit pathogenic microorganism growth or toxin formation.

§ -2 Safety and health inspections; permits. The department may:

(1) Grant a microenterprise home kitchen permit to an operator; and

(2) Revoke a microenterprise home kitchen permit if the operation of the microenterprise home kitchen violates the terms of the permit or any provision of this chapter or any rule adopted thereunder.

§ -3 Operator requirements. (a) An operator may qualify for a microenterprise home kitchen permit if:

(1) Food that is served at the microenterprise home kitchen is processed in compliance with federal and state food safety regulations and rules;

(2) A kitchen facility used to prepare food for the microenterprise home kitchen meets the requirements established by the department pursuant to this chapter;

(3) The microenterprise home kitchen operates only during the hours approved in the microenterprise home kitchen permit; and

(4) The microenterprise home kitchen complies with the requirements of this section.

(b) The department shall:

(1) Ensure compliance with this chapter and any rules adopted pursuant to this chapter when inspecting a microenterprise home kitchen;

(2) Inspect a microenterprise home kitchen that requests a microenterprise home kitchen permit only:

(A) For an initial inspection, no more than one week before the microenterprise home kitchen is scheduled to begin operation;

(B) For an unscheduled inspection, if the department conducts the inspection:

(i) Within three days before or after the day on which the microenterprise home kitchen is scheduled to begin operation; or

(ii) During operating hours of the microenterprise home kitchen; or

(i) The department provides the operator with reasonable advance notice of the inspection; or

(ii) The department has a valid reason to suspect that the microenterprise home kitchen is the source of an adulterated food or of an outbreak of illness caused by a contaminated food; and

(3) Document the reason for any inspection after the initial inspection, preserve a copy of that documentation on file with the microenterprise home kitchen's permit, and provide a copy of that documentation to the operator.

(1) Take steps to avoid any contamination to food, equipment, utensils, or unwrapped single-service and single-use articles;

(2) Notify the department of a person in the operator's home is showing symptoms associated with acute gastrointestinal illness or a communicable disease that is transmissible through food and prevent that person from entering the food preparation area while food is being prepared;

(3) Posses an approved food safety manager certificate;

(4) Ensure any employees of the microenterprise kitchen have obtained a food handler certification; and

(5) Comply with the following requirements:

(A) Time or temperature control food shall be prepared, cooked, and served on the same day;

(B) Food that is sold or provided to a customer shall not be consumed onsite at the microenterprise home kitchen operation;

(C) Food that is sold or provided to a customer shall be picked up by the consumer or delivered within a safe time period based on holding equipment capacity;

(D) Food preparation shall not involve processes that require a hazard analysis and critical control points plan, or the production, service, or sale of raw milk or raw milk products;

(E) Molluscan and panulirus shellfish shall not be served or sold;

(F) The operator shall only sell or provide food directly to consumers and shall not sell or provide food to any wholesaler or retailer; and

(G) The operator shall provide the consumer with a notification that, while a permit has been issued by the department, the kitchen may not meet all of the requirements of a commercial retail food establishment.

(d) An operator applying for a microenterprise home kitchen permit shall provide to the department:

(1) Written consent to enter the premises where food is prepared, cooked, stored, or harvested for the microenterprise home kitchen;

(2) Written standard operating procedures that include:

(A) The typical types of food that will be stored, handled, and prepared;

(B) The proposed procedures and methods of food preparation and handling;

(D) Procedures and methods for the disposal of refuse;

(E) A plan for maintaining time or temperature control food at the appropriate temperatures for each time or temperature control food; and

(F) A general excise tax license; and

(3) The operator's food safety manager certificate and any employee's food handler certification.

§ -4 Rules. (a) The department shall adopt rules pursuant to chapter 91 to establish sanitation, equipment, and maintenance requirements for microenterprise home kitchens and any requirements for the issuance of food safety manager certificates.

(b) Notwithstanding subsection (a), the department shall not adopt rules regarding:

(1) Hand washing facilities, except to require that a hand washing station supplied with warm water, soap, and disposable hand towels is conveniently located in food preparation, food dispensing, and warewashing areas;

(2) Kitchen sinks, kitchen sink compartments, and dish sanitation, except to require that the kitchen sink has hot and cold water and a sanitizing agent and is fully operational, and that dishes are sanitized between each use;

(3) The persons allowed access to the food preparation areas, food storage areas, and washing areas, except during food preparation;

(4) Display guards, covers, or containers for display foods, except to require that ready-to-eat food is protected from contamination during storage, preparation, handling, transport, and display;

(5) Outdoor display and sale of food, except to require that food is maintained at proper holding temperatures;

(6) Utensils and equipment, except to require that utensils and equipment used in the home kitchen:

(A) Retain their characteristic qualities under normal use conditions;

(B) Are properly sanitized after use; and

(7) Food contact surfaces, except to require that food contact surfaces are smooth, easily cleaned, in good repair, and properly sanitized between tasks;

(8) Non-food contact surfaces, if those surfaces are made of materials ordinarily used in residential settings, except to require that those surfaces are regularly cleaned and free from the accumulation of residue and debris;

(9) Clean-in-place equipment, except to require that the equipment is cleaned and sanitized between uses;

(10) Ventilation, except to require that gases, odors, steam, heat, grease, vapors, and smoke are able to escape the kitchen;

(11) Fixed temperature measuring devices or product mimicking sensors for the holding equipment for time or temperature control food, except to require non‑fixed temperature measuring devices for hot and cold holding of food during storage, serving, and cooling;

(12) Fixed floor-mounted and table-mounted equipment, except to require that floor-mounted and table-mounted equipment be in good repair and sanitized between uses;

(13) Dedicated laundry facilities, except to require that linens used for the microenterprise home kitchen are stored and laundered separately from household laundry and that soiled laundry is stored to prevent contamination of food and equipment;

(14) Water, plumbing, drainage, and waste, except to require that:

(A) Sinks be supplied with hot and cold potable water from:

(i) An approved public water system;

(ii) A source that meets any rules regarding the safety of drinking water; or

(iii) A water source that is tested at least once per month for bacteriologic quality, and at least once in every three year period for lead and copper; and

(B) Food preparation and service is discontinued in the event of a disruption of potable water service;

(15) The number of, and path of access to, toilet facilities, except to require that toilet facilities are kept sanitary and are equipped with proper handwashing stations;

(16) Lighting, except to require that food preparations are well lit by natural or artificial light whenever food is being prepared;

(17) Designated dressing areas and storage facilities, except to require that items not ordinarily found in a home kitchen are placed or stored away from food preparation areas, that dressing takes place outside of the kitchen facility, and that food items are stored in a manner that does not allow for contamination;

(18) The presence and handling of animals, except to require that no animals are allowed inside of food preparation and service areas;

(19) Food storage, floor, wall, ceiling, and toilet surfaces, except to require that surfaces are smooth, of durable construction, easily cleaned, and kept clean and free of debris;

(20) Kitchen facilities open to living areas, except to require that food is only prepared, handled, or stored in kitchen and food storage areas;

(21) Submission of plans and specifications before construction or remodel of a kitchen facility;

(22) The number and type of time or temperature control food offered for sale, except:

(A) A raw time or temperature control food such as raw fish or raw shellfish;

(B) Any food requiring special processes that would necessitate a hazard analysis and critical control points plan; and

(23) Approved food sources, except to require that:

(A) Food in a hermetically sealed container is obtained from a regulated food processing plant;

(B) Liquid milk and milk products are obtained from sources that comply with Grade A standards, as specified by the department by rule;

(D) Reef fish shall not be offered for sale except that fish identified as non-native and invasive may be offered for sale;

(E) Ocean foods collected from waters of the State comply with all laws and rules governing their collection;

(F) Mushrooms picked in the wild are not offered for sale or service; and

(G) Game animals offered for sale or service are raised, slaughtered, and processed according to any laws and rules governing meat and poultry;

(24) The use of items produced under this chapter; or

(25) The use of an open air barbeque, grill, or outdoor wood-burning oven.

§ -5 Fees. In addition to any other fees required by law or rule, if the department is required to inspect the microenterprise home kitchen as a source of an adulterated food or an outbreak of illness caused by a contaminated food and finds, as a result of that inspection, that the microenterprise home kitchen has produced an adulterated food or was the source of an outbreak of illness caused by a contaminated food, the department may charge and collect from the microenterprise home kitchen a fee for that inspection.

§ ‑6 Permits. (a) A microenterprise home kitchen permit shall:

(1) Be non-transferable;

(2) Be renewable on an annual basis; requiring renewals to provide a log or report of the prior year's operations, including dates of business operations, menus and number of meals served for each day of operation, total meals served, and total revenue collected;

(3) Be restricted to the location and hours listed on the permit;

(4) Include a statement that reads: "This location is permitted under modified FDA requirements."; and

(5) Provide the operator the opportunity to update the food types and products handled without requiring the operator to renew the permit.

(b) Nothing in this chapter shall be construed to prohibit an operator from applying for a different type of food permit from the department."

SECTION 3. The department of health shall amend its rules, pursuant to chapter 91, Hawaii Revised Statutes, to conform with this Act.

SECTION 4. In accordance with section 9 of article VII, of the Constitution of the State of Hawaii and sections 37-91 and 37-93, Hawaii Revised Statutes, the legislature has determined that the appropriation contained in this Act will cause the state general fund expenditure ceiling for fiscal year 2024-2025 to be exceeded by $ , or per cent. The reasons for exceeding the general fund expenditure ceiling are that the appropriation made in this Act is necessary to serve the public interest and to meet the need provided for by this Act.

SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2024-2025 for the purposes of this Act.

The sum appropriated shall be expended by the department of health for the purposes of this Act.

SECTION 6. This Act shall take effect on July 1, 3000.

HOUSE OF REPRESENTATIVES	H.B. NO.	1591
THIRTY-SECOND LEGISLATURE, 2024		H.D. 1
STATE OF HAWAII