California Legislature—2015–16 Regular Session

Assembly Bill No. 226

Introduced by Assembly Member Atkins

(Coauthors: Assembly Members Chávez, Jones, Maienschein, Waldron, and Weber)

(Coauthors: Senators Anderson, Bates, and Block)

February 3, 2015

An act to amend Sections 113779, 113789, 113818, 113839, 113984, 114053, and 114266 of, and to add Section 113780 to, and to add Chapter 12.7 (commencing with Section 114378) to Part 7 of Division 104 of, the Health and Safety Code, relating to food safety.

LEGISLATIVE COUNSEL’S DIGEST

AB 226, as introduced, Atkins. Retail food safety: fishermen’s markets.

Existing law, the California Retail Food Code, establishes uniform health and sanitation standards for, and provides for regulation by the State Department of Public Health of, retail food facilities and various types of food. Among other things, the code requires nonpermanent food facilities that handle nonprepackaged food to protect the food from contamination and limit the display and handling of nonprepackaged food. The code also establishes specified food safety and sanitation requirements for certified farmers’ markets governing food preparation, storage, and sampling, among other things. Under existing law, local health agencies are primarily responsible for enforcing the code. A person who violates any provision of the code is guilty of a misdemeanor, except as otherwise provided.

This bill would create a new type of nonpermanent food facility, defined as a “fishermen’s market,” that would be a food facility operated by a licensed commercial fisherman, a registered aquaculturist, or an entity representing California seafood producers, that sells only raw fresh or fresh frozen fish, legally caught by California-licensed commercial fishermen or harvested by California-registered aquaculturists, directly to consumers. The bill would establish and impose food safety and sanitation requirements upon a fishermen’s market. The bill would authorize only a licensed commercial fisherman, a registered aquaculturist, or an entity representing California seafood producers to act as the responsible person and sole permit holder for a fishermen’s market, and would require that fisherman a registered aquaculturist, or entity to submit a permit application and site plan, including specified information, to the local enforcement agency at least two weeks prior to the operation of the fishermen’s market. The bill would define terms for its purposes and make conforming changes.

By imposing new enforcement requirements on local health agencies, and by creating a new crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions 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 provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 113779 of the Health and Safety Code
is amended to read:

113779.  

(a) “Fish” means fresh or saltwater finfish,
crustaceans, and other forms of aquatic life begin insert including edible aquatic
plants end insert , other than birds or mammals, and all molluscan shellfish,
if intended for human consumption. “Fish” also includes alligator,
frog, aquatic turtle, jellyfish, sea cucumber, and sea urchin, and
the roe of these animals.

(b) “Fish” includes a product derived in whole or in part from
fish, including fish that have been processed in any manner.

SEC. 2.  

Section 113780 is added to the Health and Safety Code,
to read:

113780.  

“Fishermen’s Market” means a food facility that is
operated by a licensed commercial fisherman or an entity
representing California seafood producers, that sells only raw fresh
or fresh frozen fish, caught by California-licensed commercial
fishermen or harvested by California-registered aquaculturists,
directly to consumers.

SEC. 3.  

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) A 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.

begin insert

(11) Fishermen’s market.

end insert

(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 nonpotentially 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 establishment 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 nonpotentially
hazardous beverages, is offered for sale for onsite consumption,
and no food, except for crackers, pretzels, or prepackaged food
that is not potentially hazardous food is offered for onsite
consumption.

(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
foodborne illness or outbreak to the local health department and
to the State Department of Public Health within 24 hours of the
illness or outbreak.

(14) A community food producer, as defined in Section 113752.

begin insert

(d) “Fresh frozen” means that the food was quickly frozen while
still fresh, including immediately after the food had been harvested
or fish had been caught.

end insert

SEC. 4.  

Section 113818 of the Health and Safety Code is
amended to read:

113818.  

(a) “Limited food preparation” means food preparation
that is restricted to one or more of the following:

(1) Heating, frying, baking, roasting, popping, shaving of ice,
blending, steaming or boiling of hot dogs, or assembly of
nonprepackaged food.

(2) Dispensing and portioning of nonpotentially hazardous food.

(3) Holding, portioning, and dispensing of any foods that are
prepared for satellite food service by the onsite permanent food
facility or prepackaged by another approved source.

(4) Slicing and chopping of food on a heated cooking surface
during the cooking process.

(5) Cooking and seasoning to order.

(6) Preparing beverages that are for immediate service, in
response to an individual consumer order, that do not contain
frozen milk products.

begin insert

(7) Shucking oysters.

end insert begin insert

(8) Eviscerating fish at a fishermen’s market.

end insert

(b) “Limited food preparation” does not include any of the
following:

(1) Slicing and chopping unless it is on the heated cooking
surface.

(2) Thawing.

(3) Cooling of cooked, potentially hazardous food.

(4) Grinding raw ingredients or potentially hazardous food.

(5) Reheating of potentially hazardous foods for hot holding,
except for steamed or boiled hot dogs and tamales in the original,
inedible wrapper.

(6) Except as authorized in paragraph (3) of subdivision (a), hot
holding of nonprepackaged, potentially hazardous food, except
for roasting corn on the cob, steamed or boiled hot dogs, and
tamales in the original, inedible wrapper.

(7) Washing of foods.

(8) Cooking of potentially hazardous foods for later use.

SEC. 5.  

Section 113839 of the Health and Safety Code is
amended to read:

113839.  

“Nonpermanent food facility” means a food facility
that operates from a mobile unit or at a nonpermanent location,
including, but not limited to, a certified farmers’ market, begin insert a
fishermen’s market, end insert a mobile food facility, a mobile support unit,
a temporary food facility, or a vending machine.

SEC. 6.  

Section 113984 of the Health and Safety Code is
amended to read:

113984.  

(a) Adequate and suitable counter space shall be
provided for all food preparation operations.

(b) Except as specified in subdivision (c) begin insert or (h) end insert , food preparation
shall be conducted within a fully enclosed food facility.

(c) Limited food preparation shall be conducted within a food
compartment or as approved by the enforcement agency. Subject
to subdivision (g), this subdivision begin delete shall end delete begin insert does end insert not begin delete be construed end delete to
require an additional food compartment when begin delete adding end delete begin insert doing either
of the following: end insert

begin insert

(1) Eviscerating fish at a fishermen’s market.

end insert

begin insert (2) end insert begin insert   end insert begin insert Adding end insert ingredients to a beverage or dispensing into a serving
container when the beverage is prepared for immediate service in
response to an individual consumer order.

(d) Food shall be prepared with suitable utensils and on surfaces
that, prior to use, have been cleaned, rinsed, and sanitized as
specified in Section 114117 to prevent cross-contamination.

(e) Overhead protection shall be provided above all food
preparation, food display, warewashing, and food storage areas.

(f) All food shall be thawed, washed, sliced, and cooled within
an approved fully enclosed food facility.

(g) Based upon local environmental conditions, location, and
other similar factors, the enforcement officer may establish
additional structural or operational requirements, or both, for
mobile food facilities as necessary to ensure that foods,
food-contact surfaces, and utensils are of a safe and sanitary
quality.

begin insert

(h) Full enclosure of a food facility is not required for limited
food preparation when the other requirements of this section are
met and the food facility can be fully enclosed or placed within a
fully enclosed facility during periods of non-operation.

end insert

SEC. 7.  

Section 114053 of the Health and Safety Code is
amended to read:

114053.  

(a) Prepackaged food may not be stored in direct
contact with ice or water if the food is subject to the entry of water
because of the nature of its packaging, wrapping, or container, or
its positioning in the ice or water.

(b) Except as specified in subdivisions (c) and (d),
nonprepackaged food may not be stored in direct contact with
undrained ice.

(c) Whole raw fruits or vegetables, cut raw vegetables, and tofu
may be immersed in ice or water.

(d)  begin insert (1) end insert begin insert   end insert Raw chicken and raw fish that are received immersed
in ice in shipping containers may remain in that condition while
in storage awaiting preparation, display, service, or sale.

begin insert

(2) Whole or eviscerated raw fresh fish may be placed on ice
while on display for sale.

end insert

SEC. 8.  

Section 114266 of the Health and Safety Code is
amended to read:

114266.  

(a) Each permanent food facility shall be fully
enclosed in a building consisting of permanent floors, walls, and
an overhead structure that meet the minimum standards as
prescribed by this part. Food facilities that are not fully enclosed
on all sides and that are in operation on January 1, 1985, shall not
be required to meet the requirements of this section until the facility
is remodeled or has a significant begin insert change in its end insert menu begin delete change end delete or its
method of operation.

(b) Notwithstanding subdivision (a), this section begin delete shall end delete begin insert does end insert not begin delete be construed to end delete require the enclosure of dining areas or any other
operation approved for outdoor food service begin insert , or limited food
preparation operations end insert .

(c) Notwithstanding subdivision (a), a produce stand that was
in operation prior to begin delete the effective date of this part end delete begin insert January 1, 2007, end insert
shall have no more than one side open to the outside air during
business hours.

SEC. 9.  

Chapter 12.7 (commencing with Section 114378) is
added to Part 7 of Division 104 of the Health and Safety Code, to
read:

 

Chapter  12.7. Fishermen’s Markets

 

114378.  

A fishermen’s market shall meet the requirements of
this chapter and Chapter 13 (commencing with Section 114380),
and the applicable requirements of Chapter 1 (commencing with
Section 113700), Chapter 2 (commencing with Section 113728),
Chapter 3 (commencing with Section 113945), Chapter 4
(commencing with Section 113980), Chapter 5 (commencing with
Section 114095), Chapter 6 (commencing with Section 114130),
Chapter 7 (commencing with Section 114189), and Chapter 8
(commencing with Section 114250), unless specifically exempt
or otherwise provided in this chapter.

114378.1.  

(a) Fish sold in a fishermen’s market shall be raw
and may be displayed whole or eviscerated. A fisherman selling
fish in a fishermen’s market shall only sell fish that he or she
caught legally, or that was caught by one or two other licensed
commercial fishermen. If a fisherman sells fish caught by another
licensed commercial fisherman, the fisherman shall provide a copy
of that other fisherman’s commercial license and contact
information upon the request of the local enforcement agency.

(b) A fishermen’s market may provide a separate service that
fillets, cuts, or packages fish for customers who purchase direct
sales of fish within the fishermen’s market as a temporary food
facility, mobile food facility, or other facility approved by the local
enforcement agency. A separate health permit is required and
applicable requirements for that category of permit shall be met.

(c) Fish parts from the day’s operations may be used for bait
by a licensed commercial fisherman or registered aquaculturist.

(d) Ice used for refrigeration purposes shall not be used for
consumption in food or beverages.

(e) Except as otherwise provided in Section 113996, during
operating hours of a fishermen’s market, potentially hazardous
food may be held at a temperature not to exceed 45 degrees
Fahrenheit for up to 12 hours during a 24-hour period.

114378.2.  

A fishermen’s market shall meet all of the following
requirements:

(a) The name of the fisherman, vessel or farm, and species of
fish sold, shall be legible and clearly visible to patrons.

(b) Notwithstanding Section 113953, handwashing facilities for
a fishermen’s market that operates for three days or less may
include a container capable of providing a continuous stream of
water from an approved source that leaves both hands free to allow
vigorous rubbing with soap and warm water for 10 to 15 seconds,
inclusive. A catch basin shall be provided to collect wastewater,
and the wastewater shall be properly disposed of according to
Section 114197.

(c) Handwashing facilities shall be equipped with handwashing
cleanser and single-use sanitary towels. A separate receptacle shall
be available for towel waste.

(d) Notwithstanding Section 114205, potable water shall be
available for handwashing and sanitizing as approved by the local
enforcement agency.

(e) Approved toilet and handwashing facilities shall be available
within 200 feet of the premises of a fishermen’s market or as
approved by the local enforcement agency.

(f) All garbage and refuse shall be stored and disposed of in a
manner approved by the local enforcement agency.

(g) Wastewater shall be disposed of in a facility connected to
the public sewer system or in a manner approved by the local
enforcement agency.

(h) Floors shall be constructed of concrete, asphalt, tight wood,
or other similar cleanable material kept in good repair.

(i) Overhead protection shall be provided for all food
preparation, food storage, and warewashing areas. Overhead
protection shall be made of wood, canvas, or other materials that
protect the facility from precipitation, dust, bird and insect
droppings, and other contaminants.

(j) Notwithstanding Section 114095, approved warewashing
facilities may be shared if the sink is centrally located and is
adjacent to the sharing facilities. The local enforcement agency
may also approve use of warewashing facilities within a permanent
facility if it is located within 200 feet of the premises of the
fishermen’s market or as approved by the local enforcement
agency.

(k) Food-related and utensil-related equipment shall be located
and installed to prevent food contamination.

(l) During periods of nonoperation, food shall be stored within
a fully enclosed facility approved by the local enforcement agency,
or in approved food compartments where the food is protected at
all times from contamination, exposure to the elements, ingress of
rodents or other vermin, and temperature abuse.

114378.3.  

(a) A permit application and site plan shall be
submitted to the local enforcement agency at least two weeks prior
to the operation of a fishermen’s market. Only California-registered
commercial fishermen, California-registered aquaculturists, or an
entity representing California seafood producers may act as the
responsible person and sole permit holder for a fishermen’s market.
The site plan shall include all of the following:

(1) A map with proposed locations of the food booths,
boundaries of the fishermen’s market, restrooms, refuse containers,
potable water supply faucets, waste water disposal facilities, and
all shared warewashing and hand washing facilities as applicable.

(2) Details of the materials and methods used to construct the
food booths.

(3) Foods that will be handled and dispensed.

(4) Procedures for food handling, food temperature control,
refuse management, cleaning and sanitizing utensils and equipment,
and cleaning structures and premises.

(5) Procedures for transporting food to and from the fishermen’s
market and actions taken to prevent contamination.

(6) List of names of licensed commercial fishermen or registered
aquaculturists, copies of their licenses or registrations, and a
document authorizing the organizer to act as the responsible person
and permit holder on their behalf.

(b) A fishermen’s market may operate adjacent, to or in
conjunction with, a food facility or a community event. In those
situations, the fishermen’s market is only subject to the limitations
and requirements of a fishermen’s market. The other food facilities
remain subject to the limitations and requirements, including
separate permit requirements, that are applicable to the type of
facility being operated.

SEC. 10.  

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 infraction, 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 of the 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.