Amended in Assembly April 7, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 226


Introduced by Assembly Member Atkins

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

(Coauthors: Senators Anderson, Bates,begin delete and Blockend deletebegin insert Block, and Huesoend insert)

February 3, 2015


An act to amend Sections 113779, 113789,begin delete 113818,end delete 113839, 113984,begin delete 114053,end delete and 114266 of, and to addbegin delete Sectionend deletebegin delete 113780end deletebegin insert Sections 113729.5, 113780, and 113794.3end insert 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 amended, 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 onlybegin delete raw fresh orend deletebegin insert edible aquatic plants, raw fresh fish, orend insert 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 solebegin delete permit holderend deletebegin insert permitholderend insert 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 thebegin delete localend delete enforcement agency at leastbegin delete twoend deletebegin insert 2end insert 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:

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 113729.5 is added to the end insertbegin insertHealth and
2Safety Code
end insert
begin insert, to read:end insert

begin insert
3

begin insert113729.5.end insert  

“Acceptable market name” means a name that the
4FDA recognizes as a suitable statement of identity, as described
5in Section 101.3 of Title 21 of the Code of Federal Regulations,
6in the labeling of a species. An acceptable market name fairly
P3    1represents the identity of the species to United States consumers
2because it is not confusingly similar to the name of another species
3and because it is not otherwise misleading. An acceptable market
4name may be any of the following:

5(a) A common or usual name established by either a history of
6common usage in the United States or by regulation.

7(b) The common name.

8(c) A name specifically coined as the market name for a species.
9For example, “basa” is the market name coined for Pangasius
10bocourti.

end insert
11

begin deleteSECTION 1.end delete
12begin insert SEC. 2.end insert  

Section 113779 of the Health and Safety Code is
13amended to read:

14

113779.  

(a) “Fish” means fresh or saltwater finfish,
15crustaceans, and other forms of aquaticbegin delete life including edible aquatic
16plants,end delete
begin insert life,end insert other than birds or mammals, and all molluscan
17shellfish, if intended for human consumption. “Fish” also includes
18alligator, frog, aquatic turtle, jellyfish, sea cucumber, and sea
19urchin, and the roe of these animals.

20(b) “Fish” includes a product derived in whole or in part from
21fish, including fish that have been processed in any manner.

22

begin deleteSEC. 2.end delete
23begin insertSEC. 3.end insert  

Section 113780 is added to the Health and Safety Code,
24to read:

25

113780.  

“Fishermen’s Market” means abegin delete food facilityend deletebegin insert locationend insert
26 that is operated by abegin delete licensedend delete commercial fishermanbegin insert licensed by
27the Department of Fish and Wildlifeend insert
or an entity representing
28California seafood producers, that sells only rawbegin delete freshend deletebegin insert edible
29aquatic plants, raw fresh fish, end insert
or fresh frozen fish, caught by
30begin delete California-licensedend delete commercial fishermenbegin insert licensed by the
31Department of Fish and Wildlifeend insert
or harvested by
32California-registered aquaculturists, directly to consumers.

33

begin deleteSEC. 3.end delete
34begin insertSEC. 4.end insert  

Section 113789 of the Health and Safety Code is
35amended to read:

36

113789.  

(a) “Food facility” means an operation that stores,
37prepares, packages, serves, vends, or otherwise provides food for
38human consumption at the retail level, including, but not limited
39to, the following:

P4    1(1) An operation where food is consumed on or off the premises,
2regardless of whether there is a charge for the food.

3(2) A place used in conjunction with the operations described
4in this subdivision, including, but not limited to, storage facilities
5for food-related utensils, equipment, and materials.

6(b) “Food facility” includes permanent and nonpermanent food
7facilities, including, but not limited to, the following:

8(1) Public and private school cafeterias.

9(2) Restricted food service facilities.

10(3) Licensed health care facilities, except as provided in
11paragraph (13) of subdivision (c).

12(4) Commissaries.

13(5) Mobile food facilities.

14(6) Mobile support units.

15(7) Temporary food facilities.

16(8) Vending machines.

17(9) Certified farmers’ markets, for purposes of permitting and
18enforcement pursuant to Section 114370.

19(10) Farm stands, for purposes of permitting and enforcement
20pursuant to Section 114375.

21(11) Fishermen’sbegin delete market.end deletebegin insert markets.end insert

22(c) “Food facility” does not include any of the following:

23(1) A cooperative arrangement wherein no permanent facilities
24are used for storing or handling food.

25(2) A private home, including a cottage food operation that is
26registered or has a permit pursuant to Section 114365.

27(3) A church, private club, or other nonprofit association that
28gives or sells food to its members and guests, and not to the general
29public, at an event that occurs not more than three days in any
3090-day period.

31(4) A for-profit entity that gives or sells food at an event that
32occurs not more than three days in a 90-day period for the benefit
33of a nonprofit association, if the for-profit entity receives no
34monetary benefit, other than that resulting from recognition from
35participating in an event.

36(5) Premises set aside for wine tasting, as that term is used in
37Section 23356.1 of the Business and Professions Code and in the
38regulations adopted pursuant to that section, that comply with
39Section 118375, regardless of whether there is a charge for the
40wine tasting, if no other beverage, except for bottles of wine and
P5    1prepackaged nonpotentially hazardous beverages, is offered for
2sale for onsite consumption and no food, except for crackers, is
3served.

4(6) Premises operated by a producer, selling or offering for sale
5only whole produce grown by the producer or shell eggs, or both,
6provided the sales are conducted on premises controlled by the
7producer.

8(7) A commercial food processing establishment as defined in
9Section 111955.

10(8) A child day care facility, as defined in Section 1596.750.

11(9) A community care facility, as defined in Section 1502.

12(10) A residential care facility for the elderly, as defined in
13Section 1569.2.

14(11) A residential care facility for the chronically ill, which has
15the same meaning as a residential care facility, as defined in Section
161568.01.

17(12) Premises set aside by a beer manufacturer, as defined in
18Section 25000.2 of the Business and Professions Code, that comply
19with Section 118375, for the purposes of beer tasting, regardless
20of whether there is a charge for the beer tasting, if no other
21beverage, except for beer and prepackaged nonpotentially
22hazardous beverages, is offered for sale for onsite consumption,
23and no food, except for crackers, pretzels, or prepackaged food
24that is not potentially hazardous food is offered for onsite
25consumption.

26(13) (A) An intermediate care facility for the developmentally
27disabled, as defined in subdivisions (e), (h), and (m) of Section
281250, with a capacity of six beds or fewer.

29(B) A facility described in subparagraph (A) shall report any
30foodborne illness or outbreak to the local health department and
31to the State Department of Public Health within 24 hours of the
32illness or outbreak.

33(14) A community food producer, as defined in Section 113752.

begin delete

34(d) “Fresh frozen” means that the food was quickly frozen while
35still fresh, including immediately after the food had been harvested
36or fish had been caught.

end delete
37begin insert

begin insertSEC. end insertbegin insert5.end insert  

end insert

begin insertSection 113794.3 is added to the end insertbegin insertHealth and Safety
38Code
end insert
begin insert, to read:end insert

begin insert
P6    1

begin insert113794.3.end insert  

“Fresh frozen” means that the food was quickly
2frozen while still fresh, including immediately after the food had
3been harvested or fish had been caught.

end insert
begin delete
4

SEC. 4.  

Section 113818 of the Health and Safety Code is
5amended to read:

6

113818.  

(a) “Limited food preparation” means food preparation
7that is restricted to one or more of the following:

8(1) Heating, frying, baking, roasting, popping, shaving of ice,
9blending, steaming or boiling of hot dogs, or assembly of
10nonprepackaged food.

11(2) Dispensing and portioning of nonpotentially hazardous food.

12(3) Holding, portioning, and dispensing of any foods that are
13prepared for satellite food service by the onsite permanent food
14facility or prepackaged by another approved source.

15(4) Slicing and chopping of food on a heated cooking surface
16during the cooking process.

17(5) Cooking and seasoning to order.

18(6) Preparing beverages that are for immediate service, in
19response to an individual consumer order, that do not contain
20frozen milk products.

21(7) Shucking oysters.

22(8) Eviscerating fish at a fishermen’s market.

23(b) “Limited food preparation” does not include any of the
24following:

25(1) Slicing and chopping unless it is on the heated cooking
26surface.

27(2) Thawing.

28(3) Cooling of cooked, potentially hazardous food.

29(4) Grinding raw ingredients or potentially hazardous food.

30(5) Reheating of potentially hazardous foods for hot holding,
31except for steamed or boiled hot dogs and tamales in the original,
32inedible wrapper.

33(6) Except as authorized in paragraph (3) of subdivision (a), hot
34holding of nonprepackaged, potentially hazardous food, except
35for roasting corn on the cob, steamed or boiled hot dogs, and
36tamales in the original, inedible wrapper.

37(7) Washing of foods.

38(8) Cooking of potentially hazardous foods for later use.

end delete
P7    1

begin deleteSEC. 5.end delete
2begin insertSEC. 6.end insert  

Section 113839 of the Health and Safety Code is
3amended to read:

4

113839.  

“Nonpermanent food facility” means a food facility
5that operates from a mobile unit or at a nonpermanent location,
6including, but not limited to, a certified farmers’ market, a
7fishermen’s market, a mobile food facility, a mobile support unit,
8a temporary food facility, or a vending machine.

9

begin deleteSEC. 6.end delete
10begin insertSEC. 7.end insert  

Section 113984 of the Health and Safety Code is
11amended to read:

12

113984.  

(a) Adequate and suitable counter space shall be
13provided for all food preparation operations.

14(b) Except as specified in subdivisionbegin delete (c) or (h),end deletebegin insert (c),end insert food
15preparation shall be conducted within a fully enclosed food facility.

16(c) Limited food preparation shall be conducted within a food
17compartment or as approved by the enforcement agency. Subject
18to subdivision (g), this subdivision does notbegin delete toend delete require an additional
19food compartment whenbegin delete doing either of the following:end delete

begin delete

20(1) Eviscerating fish at a fishermen’s market.

end delete

21begin delete(2)end deletebegin deleteend deletebegin deleteAddingend deletebegin insert addingend insert ingredients to a beverage or dispensing into
22a serving container when the beverage is prepared for immediate
23service in response to an individual consumer order.

24(d) Food shall be prepared with suitable utensils and on surfaces
25that, prior to use, have been cleaned, rinsed, and sanitized as
26specified in Section 114117 to prevent cross-contamination.

27(e) Overhead protection shall be provided above all food
28preparation, food display, warewashing, and food storage areas.

29(f) All food shall be thawed, washed, sliced, and cooled within
30an approved fully enclosed food facility.

31(g) Based upon local environmental conditions, location, and
32other similar factors, the enforcement officer may establish
33additional structural or operational requirements, or both, for
34mobile food facilities as necessary to ensure that foods,
35food-contact surfaces, and utensils are of a safe and sanitary
36quality.

begin delete

37(h) Full enclosure of a food facility is not required for limited
38food preparation when the other requirements of this section are
39met and the food facility can be fully enclosed or placed within a
40fully enclosed facility during periods of non-operation.

end delete
begin delete
P8    1

SEC. 7.  

Section 114053 of the Health and Safety Code is
2amended to read:

3

114053.  

(a) Prepackaged food may not be stored in direct
4contact with ice or water if the food is subject to the entry of water
5because of the nature of its packaging, wrapping, or container, or
6its positioning in the ice or water.

7(b) Except as specified in subdivisions (c) and (d),
8nonprepackaged food may not be stored in direct contact with
9undrained ice.

10(c) Whole raw fruits or vegetables, cut raw vegetables, and tofu
11may be immersed in ice or water.

12(d) (1) Raw chicken and raw fish that are received immersed
13in ice in shipping containers may remain in that condition while
14in storage awaiting preparation, display, service, or sale.

15(2) Whole or eviscerated raw fresh fish may be placed on ice
16while on display for sale.

end delete
17

SEC. 8.  

Section 114266 of the Health and Safety Code is
18amended to read:

19

114266.  

(a) Each permanent food facility shall be fully
20enclosed in a building consisting of permanent floors, walls, and
21an overhead structure that meet the minimum standards as
22prescribed by this part. Food facilities that are not fully enclosed
23on all sides and that are in operation on January 1, 1985, shall not
24be required to meet the requirements of this section until the facility
25is remodeled or has a significantbegin insert menuend insert changebegin delete in its menuend delete or
26begin insert significant change inend insert its method of operation.

27(b) Notwithstanding subdivision (a), this section does not require
28the enclosure of dining areas or any other operation approved for
29outdoor foodbegin delete service, or limited food preparation operations.end delete
30begin insert service.end insert

31(c) Notwithstanding subdivision (a), a produce stand that was
32in operation prior to January 1, 2007, shall have no more than one
33side open to the outside air during business hours.

34

SEC. 9.  

Chapter 12.7 (commencing with Section 114378) is
35added to Part 7 of Division 104 of the Health and Safety Code, to
36read:

 

P9    1Chapter  12.7. Fishermen’s Markets
2

 

3

114378.  

A fishermen’s market shall meet thebegin insert applicableend insert
4 requirements ofbegin delete this chapter and Chapter 13 (commencing with
5Section 114380), and the applicable requirements ofend delete
Chapter 1
6(commencing with Section 113700), Chapter 2 (commencing with
7Section 113728), Chapter 3 (commencing with Section 113945),
8Chapter 4 (commencing with Section 113980), Chapter 5
9(commencing with Section 114095), Chapter 6 (commencing with
10Section 114130), Chapter 7 (commencing with Section 114189),
11begin delete andend delete Chapter 8 (commencing with Section 114250),begin insert and Chapter
1213 (commencing with Section 114380),end insert
unlessbegin delete specifically exempt
13or otherwiseend delete
begin insert exempted asend insert provided in this chapter.

14

114378.1.  

(a) Fish sold in a fishermen’s market shall be raw
15and may be displayed whole or eviscerated. A fisherman selling
16fish in a fishermen’s market shall only sellbegin insert raw edible aquatic
17plants or end insert
fish that he or she caught legally, or that was caught by
18one or two other licensed commercial fishermen. If a fisherman
19sells fish caught by another licensed commercial fisherman, the
20fisherman shall provide a copy of that other fisherman’s
21commercial license and contact information upon the request of
22thebegin delete localend delete enforcement agency.

23(b) A fishermen’s market may provide a separate service that
24fillets, cuts, or packages fish for customers who purchase direct
25sales of fish within the fishermen’s market as a temporary food
26facility, mobile food facility, or other facility approved by thebegin delete localend delete
27 enforcement agency. A separate health permit is required and
28applicable requirements for that category of permit shall be met.

29(c) Fish parts from the day’s operations may be used for bait
30by a licensed commercial fisherman or registered aquaculturist.

31(d) Ice used for refrigeration purposes shall not be used for
32consumption in food or beverages.

begin delete

33(e) Except as otherwise provided in Section 113996, during
34operating hours of a fishermen’s market, potentially hazardous
35food may be held at a temperature not to exceed 45 degrees
36Fahrenheit for up to 12 hours during a 24-hour period.

end delete
begin insert

37(e) Notwithstanding subdivision (b) and Section 113818, raw
38fish may be eviscerated at a fishermen’s market.

end insert
39

114378.2.  

A fishermen’s market shall meet all of the following
40requirements:

P10   1(a) begin deleteTheend deletebegin insert Each fishermen’s market food booth shall post theend insert name
2of the fisherman, vessel or farm, andbegin delete speciesend deletebegin insert acceptable market
3nameend insert
of fishbegin delete sold, shall beend deletebegin insert sold so they areend insert legible and clearly
4visible to patrons.

5(b) Notwithstanding Section 113953, handwashing facilities for
6a fishermen’s marketbegin insert food bothend insert that operates for threebegin insert consecutiveend insert
7 days or less may include a container capable of providing a
8continuous stream of water from an approved source that leaves
9both hands free to allow vigorous rubbing with soap and warm
10water for 10 to 15 seconds, inclusive. A catch basin shall be
11provided to collect wastewater, and the wastewater shall be
12properly disposed of according to Section 114197.

13(c) Handwashing facilities shall be equipped with handwashing
14cleanser and single-use sanitary towels. A separate receptacle shall
15be available for towel waste.

16(d) Notwithstanding Section 114205, potable water shall be
17available for handwashing and sanitizing as approved by thebegin delete localend delete
18 enforcement agency.

19(e) Approved toilet and handwashing facilities shall be available
20within 200 feet of the premises of a fishermen’s market or as
21approved by thebegin delete localend delete enforcement agency.

22(f) All garbage and refuse shall be stored and disposed of in a
23manner approved by thebegin delete localend delete enforcement agency.

24(g) Wastewater shall be disposed of in a facility connected to
25the public sewer system or in a manner approved by thebegin delete localend delete
26 enforcement agency.

27(h) Floors shall be constructed of concrete, asphalt, tight wood,
28or other similar cleanable material kept in good repair.

29(i) Overhead protection shall be providedbegin delete for all food
30preparation,end delete
begin insert over the evisceration process,end insert food storage,begin insert food
31display,end insert
and warewashing areas. Overhead protection shall be
32made of wood, canvas, or other materials that protect the facility
33from precipitation, dust, bird and insect droppings, and other
34contaminants.

35(j) Notwithstanding Section 114095, approved warewashing
36facilities may be shared if the sink is centrally located and is
37adjacent to the sharing facilities. Thebegin delete localend delete enforcement agency
38may also approve use of warewashing facilities within a permanent
39facility if it is located within 200 feet of the premises of the
P11   1fishermen’s market or as approved by thebegin delete localend delete enforcement
2agency.

3(k) Food-related and utensil-related equipment shall be located
4and installed to prevent food contamination.

5(l) During periods ofbegin delete nonoperation, foodend deletebegin insert inoperation, food, food
6equipment, and utensilsend insert
shall be stored within a fully enclosed
7facility approved by thebegin delete localend delete enforcement agency, or in approved
8food compartments where thebegin delete food isend deletebegin insert food, food equipment, and
9utensils areend insert
protected at all times from contamination, exposure
10to the elements, ingress of rodents or other vermin, and temperature
11abuse.

12

114378.3.  

(a) A permit application and site plan shall be
13submitted to thebegin delete localend delete enforcement agency at least two weeks prior
14to the operation of a fishermen’s market. Only California-registered
15commercial fishermen, California-registered aquaculturists, or an
16entity representing California seafood producers may act as the
17responsible person and solebegin delete permit holderend deletebegin insert permitholderend insert for a
18fishermen’s market. The site plan shall include all of the following:

19(1) A map with proposed locations of thebegin insert fishermen’s marketend insert
20 food booths, boundaries of the fishermen’s market, restrooms,
21refuse containers, potable water supply faucets,begin delete waste waterend delete
22begin insert wasteend insertbegin insertwaterend insert disposal facilities, and all shared warewashing and
23hand washing facilities as applicable.

24(2) Details of the materials and methods used to construct the
25food booths.

26(3) Foods that will be handled and dispensed.

27(4) Procedures for food handling, food temperature control,
28refuse management, cleaning and sanitizing utensils and equipment,
29and cleaning structures and premises.

30(5) Procedures for transporting food to and from the fishermen’s
31market and actions taken to prevent contamination.

32(6) List of names of licensed commercial fishermen or registered
33aquaculturists, copies of their licenses or registrations, and a
34document authorizing the organizer to act as the responsible person
35and permit holder on their behalf.

36(b) A fishermen’s market may operatebegin delete adjacent, toend deletebegin insert adjacent to,end insert
37 or in conjunction with, a food facility or a community event. In
38those situations, the fishermen’s market is only subject to the
39limitations and requirements of a fishermen’s market. The other
40food facilities remain subject to the limitations and requirements,
P12   1including separate permit requirements, that are applicable to the
2type of facility being operated.

3

SEC. 10.  

No reimbursement is required by this act pursuant to
4Section 6 of Article XIII B of the California Constitution for certain
5costs that may be incurred by a local agency or school district
6because, in that regard, this act creates a new crime or infraction,
7eliminates a crime or infraction, or changes the penalty for a crime
8or infraction, within the meaning of Section 17556 of the
9Government Code, or changes the definition of a crime within the
10meaning of Section 6 of Article XIII B of the California
11Constitution.

12However, if the Commission on State Mandates determines that
13this act contains other costs mandated by the state, reimbursement
14to local agencies and school districts for those costs shall be made
15pursuant to Part 7 (commencing with Section 17500) of Division
164 of Title 2 of the Government Code.



O

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