Shared Economy Tales of Woe
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1 Outbreaks and Legal Issues Linda Turkatte, REHS, Director S3 Conference May 10,
2 Presentation Overview 209 Food Spot Case Hurdles for Enforcement Potential Fixes Home Kitchens 2
3 209 Food Spot Case Review Complaints received Foodborne illness and unfair business practices alleged 3
4 209 Food Spot Case Review Facebook group open to public Selling Potentially Hazardous Food from private homes 4
5 Chicken Adobo Lumpia Ceviche Chicken Stir Fry Enchiladas Chile Verde Strawberries/Whipped Cream Home-made Sausage Philly Steak Pulled Pork Pretzel Dogs Chili Fries Nachos Fruit Trays Cheesecake Shrimp Spring Rolls Tortillas Empanadas Flautas Meat/Cheese/Egg Trays Chicken/Beef Dinners Burritos Hash Browns Bread Bowls/Soup Potatoes with Sour Cream Chicken Parmesian Apple Dumplings Shredded Beef Burritos Indian Food Stromboli Turkey-Stuffed Peppers Fried Chicken Home-made Ice Cream Egg Rolls Chicken/Beef Sticks Texas BBQ Sauce Infused wit Tequila Steak Sandwiches Bacon Fries Crab Puffs Chamoy Apples Pepinos Locos 5
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9 Queso Fresco referred to CA Department of Food and Agriculture 9
10 209 Food Spot Case Review Very difficult to identify sellers-many use aliases Very difficult to locate addresses of sellers Focused on the highest volume sellers- about 40 Required assistance from DA s Office from the start DA Investigators Researched addresses Made undercover purchases 10
11 209 Food Spot Case Review Sent Notices to Abate to all sellers with identified addresses Cited H&S Code for operating without a permit Section for Food Facility Section for for Cottage Food Ordered to stop all food sales Continued violations to be referred to DA s Office Notified Facebook of illegal sales 11
12 209 Food Spot Case Review Six people continued to sell food and were charged with H&SC (a) A food facility shall not be open for business without a valid permit. Five plead guilty and received 1 year plea in abeyance or informal probation, obey all laws, no same or similar offenses, hours of community service, $235 court fine One (Facebook group administrator) plead not guilty and case set for trial Public Defender assigned to case Defendant went to media with her story 12
13 Story Picked Up By Media-Most Slanted to Defendant s Perspective The Washington Post - Undercover sting nabs California mother selling ceviche through Facebook group Time - California Woman Faces Jail Time for Selling Ceviche on Facebook: 'It's Just Crazy KTLA 5 News - Stockton Mother Faces Jail Time After Joining Facebook Food KCRA - NorCal mom faces jail time after selling ceviche on Facebook abc7.com - NorCal mom faces jail time after selling ceviche on Facebook fox59.com - Mother faces jail time after joining Facebook food group fox40.com - Single Mom Faces Jail Time After Participating in Facebook thesun.co.uk/news - Woman facing jail time after homemade fish salad sanfrancisco.cbslocal.com - Stockton Mom Faces Trial For Selling Homemade Ceviche abc13.com - Mom could face jail time for selling ceviche Many other medial outlets 13
14 209 Food Spot Case Review DA s Office Case Hundreds of pages from Facebook showing large volume of food sales-including many from Defendant Food sold directly to DA Investigators Statement from one person who got sick from the ceviche Press Conference-focus on food safety Received hate calls/ Protestors Public concern over DA resources being directed away from prosecuting violent crimes Many people sympathetic to defendant 14
15 209 Food Spot Case Review Issues Facing Trial Continued Jury may be sympathetic to defendant Are these illegal Food Facilities or illegal CFOs? Can violation charged be proven? H&SC A Food Facility shall not be open for business without a valid permit? Private home is not a Food Facility-by definition CFO is not a Food Facility-by definition Can other violations be used? H&SC CFO shall not be open for business unless it is registered/permitted? Preparing potentially hazardous foods in home kitchen is not a CFO 15
16 209 Food Spot Case Review Issues facing Trial H&SC Premises (a) States that a private home shall not be used for conducting food facility operations (b) private home can be used for Restricted Food Facility No direct mention of CFO H&SC CFO Operational Requirements CFO shall be considered a Restricted Food Facility for purposes of and subject to: Sections , ,114285,114286, , , , , , , , Hard for jury to follow Easy for Public Defender to confuse jury create doubt 16
17 209 Food Spot Case Review January 2017 Case to be dismissed in January of 2018 if Defendant: Serves 80 hours of community service Obey all laws Does not commit same or similar offenses Does not operate or participate in the operation of a food facility without proper permits Does not take actions, administrate or post on social media regarding illegal food sales, trading or bartering of food, unless done with proper permits Waives search and seizure of her person and vehicle for evidence of food sales 17
18 Hurdles to Enforcement Public perception Media Anti-government, small government sentiments Anti- innovation, -business Local food movement What s the harm-buyer beware Food safety system not fully understood By public By media By DA, Public Defenders By judges 18
19 Hurdles to Enforcement No permit to revoke DA only other enforcement tool Noticing is difficult without physical locations Lack of resources EH and District Attorney Takes time to investigate and build a case DA Investigators helpful May not win in court then what? 19
20 Hurdles to Enforcement CalCode language Potentially hazardous food out of a private home Not a food facility Not a Cottage Food Operation Not clear, confusing to the lay person Violations not explicitly written for all types of operations Must refer to several different sections to fully understand how a Cottage Food Operation is regulated No language addressing internet-based food sales No specific language prohibiting the promotion of illegal food sales-may be violating truth in advertising laws? 20
21 Potential Fixes Update CalCode To include clearer, more straight forward violation language It is unlawful to is prohibited is a violation for each type of operation in enforcement sections Ability to cite one violation section for each type of operation without having to review other sections by reference Pending legislation AB 626 (Garcia) - home-based micro kitchens legalize - Can it be done safely Add administrative enforcement remedies to CalCode to reduce stress on DA s Office resources 21
22 Home Kitchens Can potentially hazardous food be safely cooked out of a home kitchen? Volume of food produced based on capacity of kitchen and equipment Storage, hot and cold holding, potable water, sewage capacity, grease disposal, prep capacity, deep frying? Direct sales to customers only Food safety training Address role of third party promoters - websites Ability to permit, inspect, investigate complaints, take enforcement action, recover costs Ability to regulate locally: land use, zoning, fire Incubator only-business growth with move to commercial kitchen 22
23 Home Kitchens Is there an expectation from the public that the food they buy is: Safe? Unadulterated? Prepared in a clean environment? Honestly presented? San Joaquin County received over 640 food-related complaints in Complaints increasing by at least 10% every year 23
24 Home Kitchens CDC estimates that each year roughly 48 million people (1 in 6 Americans) gets sick from a foodborne illness, 128,000 are hospitalized, and 3,000 die. The U.S. Department of Agriculture (USDA) estimates that foodborne illnesses cost $15.6 billion each year. Food Safety System a system of prevention and overlapping safeguards designed to minimize foodborne illness, ensure employee health, demonstrate manager knowledge, ensure safe food, specify nontoxic and cleanable equipment, and delineate acceptable levels of sanitation for food facility premises. 24
25 Pending Case-Cooking Food from a Private Home Homebased Food Prep and Sales: Is it really Innovation versus Food Safety? 25
26 Pending Case-Cooking Food from a Private Home 26
27 Pending Case-Cooking Food from a Private Home 27
28 Pending Case-Cooking Food from a Private Home 28
29 Pending Case-Cooking Food from a Private Home 29
30 Pending Case-Cooking Food from a Private Home 30
31 Pending Case-Cooking Food from a Private Home 31
32 Our Food Safety System Is it worth defending? or Is it buyer beware? 32
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