S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5951
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              March 23, 2021
                                ___________
 
 Introduced  by  Sen. HINCHEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Agriculture
 
 AN ACT to amend the agriculture and markets  law,  in  relation  to  the
   licensing of home kitchen operations
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Short title. This act shall be known and may be  cited  as
 the "home kitchen enterprise and economic opportunity act".
   §  2.    Legislative  intent.  Every  day, New Yorkers are using their
 skills, talents and creativity to build home kitchen-based businesses to
 provide unique, quality food products, increasingly sourced using  local
 ingredients  for  direct  sale  to  consumers, farmers markets and other
 retail outlets. By practicing and perfecting  their  products,  many  of
 these  craft culinary enterprises have succeeded and grown into thriving
 and vibrant small businesses, creating jobs and supporting local  econo-
 mies  and local farmers. It is the legislature's intent that home kitch-
 en-based food entrepreneurs should be supported and encouraged in  their
 efforts. Homemade food businesses can create significant economic oppor-
 tunities  for  New  Yorkers  that need them most--including women, immi-
 grants, and people of color, who have  historically  faced  barriers  to
 labor  force  participation  and  entrepreneurship and many of whom have
 lost employment in the food industry as a result of the COVID-19 pandem-
 ic. The home kitchen enterprise and economic opportunity act  modernizes
 regulations  impacting these enterprises and reduces artificial barriers
 to business growth, while preserving food safety and public health.
   § 3.  The agriculture and markets law is amended by adding a new arti-
 cle 22-A to read as follows:
                               ARTICLE 22-A
                          HOME KITCHEN OPERATIONS
 SECTION 265. DEFINITIONS.
         266. LICENSES; FEES.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10458-01-1

 S. 5951                             2
 
         267. SALES, DELIVERY, DISCLOSURE.
         268. RULES AND REGULATIONS.
         269. INSPECTIONS.
   §  265.  DEFINITIONS.  1. "HOME KITCHEN OPERATION" MEANS AN ENTERPRISE
 IN A PRIVATE HOME THAT IS CONTROLLED AND OPERATED  BY  A  RESIDENT  THAT
 STORES, HANDLES, PREPARES AND PACKAGES FOOD FOR CONSUMERS AND THAT MEETS
 ALL OF THE FOLLOWING CONDITIONS:
   (A)  ALL  FOOD  SOLD  OR  OTHERWISE  PROVIDED TO CONSUMERS BY THE HOME
 KITCHEN OPERATION IS READY-TO-EAT FOOD; AND
   (B) DOES NOT PRODUCE:   ALCOHOLIC BEVERAGES; MILK  OR  MILK  PRODUCTS;
 FOOD  ITEMS  CONTAINING  RAW  SHELLFISH; ANY FOOD THAT REQUIRES A HAZARD
 ANALYSIS AND CRITICAL CONTROL POINT PLAN UNDER APPLICABLE FEDERAL, STATE
 OR LOCAL LAW; AND ANY  LOW-ACID  CANNED  FOOD  OR  ACIDIFIED  FOOD  THAT
 REQUIRES  A  SCHEDULED  PROCESS UNDER APPLICABLE FEDERAL, STATE OR LOCAL
 LAW.
   A HOME KITCHEN OPERATION DOES NOT INCLUDE  A  PROCESSOR  OF  HOME-PRO-
 CESSED  FOOD  OPERATING  UNDER  AN  EXEMPTION FROM LICENSING PURSUANT TO
 ARTICLE TWENTY-C OF THIS CHAPTER AUTHORIZED BY THE COMMISSIONER, A  FOOD
 SERVICE ESTABLISHMENT, TEMPORARY FOOD SERVICE ESTABLISHMENT, CATERER, OR
 RESIDENTIAL GROUP HOME FACILITY.
   2.  "LICENSED  AREA" MEANS THE KITCHEN OF A PRIVATE HOME AND ANY OTHER
 AREA OF THE HOME USED FOR THE PREPARATION, PACKAGING, STORAGE,  HANDLING
 OR  SANITATION OF FOOD, EQUIPMENT, AND UTENSILS USED IN THE HOME KITCHEN
 OPERATION, INCLUDING REFUSE AND TOILET AREAS.
   3.  "READY-TO-EAT FOOD" MEANS FOOD THAT IS IN A FORM  THAT  IS  EDIBLE
 AND  SAFE  TO  EAT WITHOUT WASHING, COOKING OR ADDITIONAL PREPARATION BY
 THE CONSUMER AND THAT IS REASONABLY EXPECTED TO BE CONSUMED IN THE  FORM
 IN  WHICH  IT  IS  PROVIDED  TO  THE  CONSUMER OR AFTER REHEATING BY THE
 CONSUMER.
   § 266. LICENSES; FEES. 1.  NO PERSON SHALL MAINTAIN OR OPERATE A  HOME
 KITCHEN OPERATION UNLESS LICENSED BY THE COMMISSIONER. APPLICATION FOR A
 LICENSE  TO  OPERATE  A HOME KITCHEN OPERATION SHALL BE MADE UPON A FORM
 PRESCRIBED BY THE COMMISSIONER. THE COMMISSIONER MAY REQUIRE A  LICENSEE
 TO RENEW THE LICENSE ANNUALLY.
   2.  A  LICENSE, ONCE ISSUED, SHALL BE NONTRANSFERABLE. A LICENSE SHALL
 BE VALID ONLY FOR THE PERSON AND LOCATION SPECIFIED BY SUCH LICENSE AND,
 UNLESS SUSPENDED OR REVOKED FOR CAUSE, FOR THE TIME PERIOD INDICATED.
   3. THE LICENSE, OR AN ACCURATE COPY THEREOF, SHALL BE RETAINED BY  THE
 OPERATOR  ONSITE  AND MADE AVAILABLE UPON REQUEST TO A REPRESENTATIVE OF
 THE DEPARTMENT.
   4.  THE APPLICANT FOR A HOME KITCHEN OPERATION LICENSE SHALL SUBMIT TO
 THE COMMISSIONER WRITTEN STANDARD OPERATING PROCEDURES THAT INCLUDE  ALL
 OF THE FOLLOWING INFORMATION:
   (A) A LIST OF ALL FOOD TYPES OR PRODUCTS THAT WILL BE HANDLED;
   (B) PROPOSED PROCEDURES AND METHODS OF FOOD PREPARATION AND HANDLING;
   (C)  PROCEDURES,  METHODS,  AND  SCHEDULES  FOR  CLEANING UTENSILS AND
 EQUIPMENT AND FOR THE DISPOSAL OF REFUSE;
   (D) HOW FOOD WILL BE MAINTAINED AT SAFE HOLDING  TEMPERATURES  PENDING
 PICKUP BY CONSUMERS OR DURING DELIVERY;
   (E) DAYS AND TIMES THAT THE HOME KITCHEN MAY BE USED AS A HOME KITCHEN
 OPERATION.  THE  STATED DAYS AND TIMES SHALL BE FOR INFORMATION PURPOSES
 AND NOT BINDING ON THE LICENSEE.
   5. THE COMMISSIONER SHALL ISSUE A LICENSE AFTER AN INITIAL  INSPECTION
 HAS  DETERMINED  THAT THE PROPOSED HOME KITCHEN OPERATION AND ITS METHOD
 OF OPERATION COMPLY WITH THE REQUIREMENTS OF THIS ARTICLE.  THE  INITIAL
 INSPECTION MAY BE CONDUCTED REMOTELY VIA VIDEOCONFERENCE TECHNOLOGY.

 S. 5951                             3
 
   6.  THE  COMMISSIONER  SHALL  PROVIDE  THE OPERATOR THE OPPORTUNITY TO
 UPDATE THE FOOD TYPES AND PRODUCTS HANDLED WITHOUT REQUIRING THE  OPERA-
 TOR TO SUBMIT A NEW LICENSE APPLICATION.
   7. THE COMMISSIONER MAY CHARGE A LICENSE FEE NOT TO EXCEED ONE HUNDRED
 SEVENTY-FIVE DOLLARS.
   8. THE COMMISSIONER MAY DECLINE TO GRANT A NEW LICENSE, MAY DECLINE TO
 RENEW  A  LICENSE,  AND  MAY SUSPEND OR REVOKE A LICENSE ALREADY GRANTED
 AFTER DUE NOTICE AND OPPORTUNITY FOR HEARING WHENEVER HE  OR  SHE  FINDS
 THAT:
   (A)  ANY STATEMENT CONTAINED IN AN APPLICATION FOR A LICENSE IS OR WAS
 FALSE OR MISLEADING;
   (B) THE HOME KITCHEN OPERATION DOES NOT HAVE FACILITIES  OR  EQUIPMENT
 SUFFICIENT TO MAINTAIN ADEQUATE SANITATION FOR THE ACTIVITIES CONDUCTED;
   (C)  THE HOME KITCHEN OPERATION IS NOT MAINTAINED IN A CLEAN AND SANI-
 TARY CONDITION OR IS NOT OPERATED IN A SANITARY MANNER;
   (D) THE MAINTENANCE AND OPERATION OF THE  HOME  KITCHEN  OPERATION  IS
 SUCH THAT THE FOOD PRODUCED THEREIN IS OR MAY BE ADULTERATED;
   (E)  THE  HOME  KITCHEN OPERATION HAS FAILED OR REFUSED TO PRODUCE ANY
 RECORDS OR PROVIDE ANY INFORMATION DEMANDED BY THE COMMISSIONER  REASON-
 ABLY RELATED TO THE ADMINISTRATION AND ENFORCEMENT OF THIS ARTICLE; OR
   (F)  THE  HOME  KITCHEN OPERATION HAS FAILED TO COMPLY WITH ANY OF THE
 PROVISIONS OF THIS ARTICLE OR RULES AND REGULATIONS PROMULGATED PURSUANT
 THERETO.
   § 267. SALES, DELIVERY, DISCLOSURE. 1.   HOME KITCHEN  OPERATIONS  MAY
 SELL OR OTHERWISE PROVIDE FOOD DIRECTLY TO CONSUMERS ONLY AND NOT TO ANY
 FOOD  RESELLER.    HOME KITCHEN OPERATIONS MAY NOT SELL OR DELIVER THEIR
 FOOD TO CONSUMERS OUTSIDE NEW YORK.
   2. HOME KITCHEN OPERATIONS MAY SELL FOOD TO  CONSUMERS  IN  PERSON  OR
 REMOTELY  BY  TELEPHONE,  EMAIL OR INTERNET WEBSITE, INCLUDING THROUGH A
 THIRD-PARTY'S INTERNET WEBSITE OR MOBILE APPLICATION. FOOD FROM  A  HOME
 KITCHEN  OPERATION  MAY BE DELIVERED TO CONSUMERS BY THE OPERATOR, BY AN
 EMPLOYEE OR AGENT OF THE OPERATOR, OR BY A THIRD-PARTY DELIVERY SERVICE.
   3. HOME KITCHEN OPERATIONS SHALL PROVIDE THE FOLLOWING INFORMATION  TO
 THE  CONSUMER  IN  A  CLEAR AND CONSPICUOUS MANNER ON A LABEL AFFIXED TO
 FOOD THAT IS SOLD IN A PACKAGE OR CONTAINER, ON A SIGN AT THE  POINT  OF
 SALE  IF  THE  FOOD  IS  NOT  SOLD IN A PACKAGE OR CONTAINER, AND ON ANY
 WEBPAGE OR MOBILE APPLICATION WHERE THE FOOD CAN BE ORDERED:
   (A) THE NAME, LICENSE NUMBER, AND TELEPHONE NUMBER OF THE HOME KITCHEN
 OPERATION THAT PREPARED THE FOOD;
   (B) THE COMMON OR USUAL NAME OF THE FOOD ITEM;
   (C) IF A FOOD ITEM CONTAINS MORE THAN ONE INGREDIENT, A  LIST  OF  ITS
 INGREDIENTS IN DESCENDING ORDER OF PREDOMINANCE BY WEIGHT; AND
   (D) THE FOLLOWING STATEMENT: "MADE IN A HOME KITCHEN."
   §  268.  RULES  AND  REGULATIONS. 1. BY NO LATER THAN DECEMBER THIRTY-
 FIRST, TWO THOUSAND TWENTY-TWO, THE COMMISSIONER SHALL PROMULGATE  RULES
 AND  REGULATIONS  TO IMPLEMENT THIS ARTICLE.  SUCH RULES AND REGULATIONS
 MAY INCLUDE PROVISIONS RELATING TO LICENSING OF HOME KITCHEN OPERATIONS,
 HYGIENE, SANITATION, APPROVED SOURCES OF FOOD, TRAINING AND  RECORDKEEP-
 ING.
   2.  THE  REGULATIONS  PROMULGATED  PURSUANT TO SUBDIVISION ONE OF THIS
 SECTION SHALL INCLUDE REQUIREMENTS FOR SANITATION IN HOME KITCHEN  OPER-
 ATIONS THAT SHALL:
   (A)  APPLY  ONLY  TO  THE LICENSED OPERATIONS AND LICENSED AREA OF THE
 HOME;
   (B) BE REASONABLY NECESSARY  TO  ENSURE  FOOD  SAFETY  AND  REASONABLY
 FEASIBLE FOR ORDINARY HOME KITCHEN FACILITIES;

 S. 5951                             4
 
   (C)  NOT  REQUIRE HOME KITCHEN OPERATIONS TO HAVE OR TO USE FACILITIES
 OR EQUIPMENT NOT ORDINARILY USED IN PRIVATE HOMES; AND
   (D)  NOT  PREVENT  OR  RESTRICT PERSONS WHO LIVE IN THE HOME AND THEIR
 GUESTS FROM ACCESSING AND BEING PRESENT IN THE LICENSED AREA WHILE  FOOD
 FOR  THE  HOME  KITCHEN  OPERATION IS BEING STORED, HANDLED, PREPARED OR
 PACKAGED, SO LONG AS SUCH PERSONS ARE SUPERVISED BY THE LICENSED  OPERA-
 TOR  AND NOT KNOWN TO HAVE SYMPTOMS OF ACUTE GASTROINTESTINAL ILLNESS OR
 TO BE INFECTED WITH A DISEASE THAT IS TRANSMISSIBLE THROUGH FOOD.
   3. IF FOOD SAFETY TRAINING IS REQUIRED, THE COMMISSIONER SHALL  ENSURE
 THAT  THE TRAINING CONTENT AND ANY REQUIRED EXAMINATION ARE AVAILABLE IN
 LANGUAGES OTHER THAN ENGLISH THAT ARE COMMONLY SPOKEN BY NEW YORK  RESI-
 DENTS AS THEIR PRIMARY LANGUAGE.
   4.  REGULATIONS  ADOPTED  BY  THE  COMMISSIONER  MAY REQUIRE THAT HOME
 KITCHEN OPERATIONS COMPLY WITH RETAIL FOOD STORE SANITATION REGULATIONS,
 PROVIDED THAT HOME KITCHEN OPERATIONS SHALL BE EXEMPT FROM ANY  REQUIRE-
 MENTS THAT DO NOT MEET THE CRITERIA OF SUBDIVISION TWO OF THIS SECTION.
   5.  A  HOME  KITCHEN  OPERATION  SHALL COMPLY WITH THE RULES AND REGU-
 LATIONS ADOPTED BY THE COMMISSIONER UNDER THIS ARTICLE.
   § 269. INSPECTIONS. 1.  AFTER THE INITIAL INSPECTION FOR  PURPOSES  OF
 DETERMINING  LICENSE  ELIGIBILITY,  A  HOME  KITCHEN  OPERATION SHALL BE
 SUBJECT TO INSPECTIONS ONLY IN THE FOLLOWING THREE CIRCUMSTANCES:
   (A) NOT MORE THAN ONCE IN ANY TWELVE-MONTH PERIOD, THE DEPARTMENT  MAY
 CONDUCT  A  ROUTINE INSPECTION FOR THE PURPOSE OF OBSERVING THE OPERATOR
 ENGAGED IN THE USUAL ACTIVITIES OF A HOME KITCHEN OPERATION,  INCLUDING,
 BUT  NOT  LIMITED  TO,  ACTIVE  FOOD  PREPARATION.  THE DEPARTMENT SHALL
 PROVIDE NOTICE TO AN OPERATOR BEFORE  A  ROUTINE  INSPECTION  AND  SHALL
 CONDUCT  THE  ROUTINE  INSPECTION AT A MUTUALLY AGREEABLE DATE AND TIME.
 THIS PARAGRAPH SHALL NOT BE DEEMED TO REQUIRE THE DEPARTMENT TO  CONDUCT
 A ROUTINE INSPECTION.
   (B)  A FOR-CAUSE INSPECTION MAY BE CONDUCTED WHEN THE DEPARTMENT HAS A
 VALID REASON, SUCH AS A CREDIBLE CONSUMER  COMPLAINT,  TO  SUSPECT  THAT
 ADULTERATED  OR  OTHERWISE  UNSAFE  FOOD  HAS  BEEN PRODUCED BY THE HOME
 KITCHEN OPERATION OR THAT THE HOME KITCHEN OPERATION HAS OTHERWISE  BEEN
 IN  VIOLATION OF THIS ARTICLE. THE DEPARTMENT SHALL PROVIDE NOTICE TO AN
 OPERATOR BEFORE CONDUCTING A FOR-CAUSE INSPECTION AND SHALL CONDUCT  THE
 INSPECTION AT A MUTUALLY AGREEABLE DATE AND TIME.
   (C)  IF THE DEPARTMENT HAS JUST CAUSE TO BELIEVE THAT THE HOME KITCHEN
 OPERATION POSES A SERIOUS HAZARD OR IMMEDIATE THREAT TO  PUBLIC  HEALTH,
 THE  DEPARTMENT  MAY  CONDUCT AN EMERGENCY INSPECTION THAT IS LIMITED TO
 THE FACTS PROMPTING THE INSPECTION. THE  DEPARTMENT  SHALL  PROVIDE  THE
 OPERATOR  WITH  ADVANCE  NOTICE OF AN EMERGENCY INSPECTION TO THE EXTENT
 THAT IT IS REASONABLE TO DO SO UNDER THE CIRCUMSTANCES.
   2. THE DEPARTMENT MAY INSPECT ONLY  THE  LICENSED  AREA  OF  THE  HOME
 KITCHEN  OPERATION  FOR  THE  PURPOSE OF ENFORCING OR ADMINISTERING THIS
 ARTICLE.
   § 4. Subdivision 3 of section 251-z-2 of the agriculture  and  markets
 law,  as  amended by chapter 507 of the laws of 1973, is amended to read
 as follows:
   3. The term "food processing  establishment"  means  any  place  which
 receives  food  or food products for the purpose of processing or other-
 wise adding to  the  value  of  the  product  for  commercial  sale.  It
 includes,  but  is not limited to, bakeries, processing plants, beverage
 plants and food manufactories. However, the term does not include: those
 establishments that process and manufacture food or food  products  that
 are  sold  exclusively  at  retail for consumption on the premises; HOME
 KITCHEN OPERATIONS  LICENSED  BY  THE  COMMISSIONER  UNDER  SECTION  TWO

 S. 5951                             5
 
 HUNDRED  SIXTY-SIX  OF THIS CHAPTER; those operations which cut meat and
 sell such meat at retail on the premises; bottled and bulk water facili-
 ties; those food processing establishments which are covered by articles
 four,  four-a,  five-a,  five-b,  five-c, five-d, seventeen-b, nineteen,
 [twenty-b,] and twenty-one of this chapter; service food establishments,
 including vending machine commissaries, under permit and  inspection  by
 the  state  department of health or by a local health agency which main-
 tains a program certified and approved  by  the  state  commissioner  of
 health;  establishments  under  federal  meat,  poultry  or  egg product
 inspection; or establishments engaged solely in the harvesting, storage,
 or distribution of one or more raw agricultural  commodities  which  are
 ordinarily  cleaned,  prepared,  treated  or  otherwise processed before
 being marketed to the consuming public.
   § 5. Subdivision 1 of section 500 of the agriculture and markets  law,
 as amended by section 8 of part I1 of chapter 62 of the laws of 2003, is
 amended to read as follows:
   1.  Definitions. For the purposes of this section, the following terms
 shall have the following meanings:
   (a) "Food  service  establishment"  means  any  place  where  food  is
 prepared  and  intended for individual portion service, and includes the
 site at which individual  portions  are  provided,  whether  consumption
 occurs  on  or off the premises, or whether or not there is a charge for
 the food.  THE TERM DOES NOT INCLUDE A HOME KITCHEN  OPERATION  LICENSED
 BY THE COMMISSIONER UNDER SECTION TWO HUNDRED SIXTY-SIX OF THIS CHAPTER.
   (b)  "Retail  food  store"  means  any  establishment or section of an
 establishment where food and food products are offered to  the  consumer
 and  intended  for  off-premises  consumption. The term does not include
 HOME KITCHEN OPERATIONS LICENSED BY THE COMMISSIONER UNDER  SECTION  TWO
 HUNDRED  SIXTY-SIX  OF  THIS  CHAPTER,  establishments which handle only
 pre-packaged, non-potentially hazardous  foods,  roadside  markets  that
 offer  only  fresh  fruits  and  fresh vegetables for sale, food service
 establishments, or food and beverage vending machines.
   (c) "Zone" means an administratively determined geographic portion  of
 the state to which inspectors are assigned by the department.
   (d)  "Food  warehouse" shall mean any food establishment in which food
 is held for commercial distribution.
   § 6.  This act shall take effect immediately.