If it's illegal to sell cakes from home, can I do this?

Business By MrsNancyB1 Updated 22 Aug 2009 , 11:16pm by Larkin121

ceshell Posted 18 Aug 2009 , 11:07pm
post #61 of 133

Amia, I don't think the issue is whether or not it's ok to break laws that are flawed or weird (I've seen that debated to death in other threads, the idea that "well the law stinks, or is inconvenient, etc...so I'm just gonna break it anyway because I can get away with it). I think the issue in this particular thread is: how strictly is the law interpreted, or rather: what PRECISELY is the law and does it honestly prohibit a financial transaction amongst family or friends when food is involved?

Quote:
Originally Posted by kelleym

Quote:
Quote:

§229.167 (E)(10) Private homes and living or sleeping quarters, use prohibition. A private home, a room used as living or sleeping quarters, or an area directly opening into a room used as living or sleeping quarters may not be used for conducting food establishment operations.



My county's health department does not consider me to be a Food Establishment if I make cakes for my friends and family.




This is exactly what I mean. Kelleym is not proposing to "break the law" because she can get away with it or because she thinks the law stinks and she darned well wants to do what she wants to do; her and my point is: selling cakes to family does not a "food establishment" operation make. Home baking is obviously legal in Texas or they wouldn't sell ovens there icon_wink.gif
Then again, Kelleym, can you find the part of the law code that actually DEFINES "Food Establishment"? If TX law defines "Food Establishment" as anyone who prepares food for any other person to eat, even if it's to bring to a party or picnic, then I have some serious crow to eat icon_redface.gif

Amia Posted 18 Aug 2009 , 11:10pm
post #62 of 133

It's called a joke ceshell.

ceshell Posted 18 Aug 2009 , 11:23pm
post #63 of 133

I know icon_smile.gif

Texas_Rose Posted 18 Aug 2009 , 11:24pm
post #64 of 133

Texas Food Establishment Definition:

(40) Food establishment--
(A) Food establishment means an operation that stores, prepares, packages,serves, vends, or otherwise provides food for human consumption:
(i) such as a restaurant; retail food store; satellite or catered feeding
location; catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people; market; vending location; conveyance used to transport people; institution; or food bank; and
(ii) that relinquishes possession of food to a consumer directly, or
indirectly through a delivery service such as home delivery of grocery orders or restaurant takeout orders, or delivery service that is provided by common carriers.

(B) Food establishment includes:
(i) an element of the operation such as a transportation vehicle or a central
preparation facility that supplies a vending location or satellite feeding location unless the vending or feeding location is permitted by the regulatory authority; and
(ii) an operation that is conducted in a mobile, stationary, temporary, or
permanent facility or location; where consumption is on or off the premises; and regardless of whether there is a charge for the food.

(C) Food establishment does not include:
(i) an establishment that offers only prepackaged foods that are not
potentially hazardous;
(ii) a produce stand that only offers whole, uncut fresh fruits and
vegetables;
(iii) a food processing plant;
(iv) a kitchen in a private home if only food that is not potentially
hazardous is prepared for sale or service at a function such as a religious or charitable organization's bake sale if allowed by law;
(v) an area where food that is prepared as specified in subparagraph
(C)(iv) of this paragraph is sold or offered for human consumption;
(vi) a Bed and Breakfast Limited facility as defined in these rules; or
(vii) a private home that receives catered or home-delivered food.


(17) Consumer--A person who is a member of the public, takes possession of food, is not functioning in the capacity of an operator of a food establishment or food processing plant, and does not offer the food for resale.

-K8memphis Posted 18 Aug 2009 , 11:31pm
post #65 of 133
Quote:
Originally Posted by ceshell

I know icon_smile.gif




Omg I love the inferno smilie. Way cool.

ceshell Posted 18 Aug 2009 , 11:40pm
post #66 of 133

Texas_Rose, that info ROCKS. It still doesn't answer the question though LOL. Does "a member of the public" mean "including any human being other than those living in the same home"? Or are friends/family defined as "private parties"? Because that is really what is at the heart of this part of the debate: is a close personal friend (I am NOT talking about "friends of friends") or a family member the same as a "consumer"?

yeastconfection Posted 18 Aug 2009 , 11:48pm
post #67 of 133

I know this is off topic but has anyone considered selling their cakes as art......You know basically art work that you don't know what the customer does with it when they get home. Kind of like dragees and gumpaste flowers - technically they are not supposed to be eaten but we know people who crunch on the dragees and suck on the gumpaste petals... When customers choose flavors they are choosing cake art "styles"....you get the picture.....never mentioning that they will be eaten....That way when you get sued you basically say "What? They ATE my art?"

Larkin121 Posted 18 Aug 2009 , 11:55pm
post #68 of 133

I've been hanging out reading this thread - I'm really interested to see how various states define "the public" as is being questioned here. It really bugs me to think that the state has any say in whether my own mother pays me for a cake. Can you not pay your kids for chores, either? I don't quite understand the difference.

But I also wanted to chime in about the above definitions of food establishment - it looks almost identical to the one for my state and does it drive anyone else NUTS that a bed and breakfast is exempt?!?! How is that any different? I even asked my health department guy, who was really nice and his answer was something like, "Yeah...(pause)....well.... they have a limited number they can cook for...and only one meal a day.... no more than 8 people at once.......so....." I asked if it didn't matter if those 8 people a day, potentially 56 different people in a week, could get sick just the same as they are saying my customers could get sick. (pause). So then I said, "Or did they just have lobbyists working on their side?" He was like, "Pretty much."

Ugh.

Anyway...back to the definition of "the public..."

kelleym Posted 18 Aug 2009 , 11:59pm
post #69 of 133

Thanks for posting that, TexasRose. Seems to me the key is probably in the definition of "consumer", but since we're not lawyers or bureaucrats here, I think the real question is, can I take the word of the public health official in my jurisdiction? I think I can. And not only that, I think I SHOULD.

Deb_ Posted 19 Aug 2009 , 12:01am
post #70 of 133

(B) Food establishment includes:
ii) an operation that is conducted in a mobile, stationary, temporary, or
permanent facility or location; where consumption is on or off the premises; and regardless of whether there is a charge for the food.


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


That's interesting........regardless of whether there is a charge for the food. So you have friends over to your home for dinner, that would be considered a "food establishment"? icon_eek.gif
Hey Amia......after cutting hair all day believe me I don't go to bed without bathing........I have a bra full of hair when I get home and it ain't mine... icon_lol.gif

ceshell Posted 19 Aug 2009 , 12:06am
post #71 of 133

Yeastconfection, I don't think it matters what you call it, if it's edible, it's a food product. That's another example of a "loophole" that just doesn't make sense. No judge in the world would believe that you didn't anticipate someone eating your edible product just because you labeled it as a work of art.

I think people need to play honestly by the rules (and work to change the rules if they don't like them)...but my issue is just that sometimes the most stringent interpretation of the rules might not be accurate, and people may be calling "Lawbreaker!" on those who are not, in fact, breaking the law. I can't help but be so interested in this because I too live in a state where you cannot "sell home baked goods." As someone who DOESN'T sell my cakes, I watch these debates and start to ponder all of the other instances of money being exchanged between friends and family, and I wonder: where is the law meant to intervene, and where does the law not apply...what really constitutes "selling" and do I need to feel dishonest if my mom floats me some money to make my dad's birthday cake? It's been much-debated here but it seems like every time someone calls their local HD, the HD says essentially "Oh come on, we're not trying to stop people from selling their grandmother a cake."

Anyway I think if you want to sell cakes as "art" and not call them edible, then you need to make them from styrofoam dummies. thumbs_up.gif

Texas_Rose Posted 19 Aug 2009 , 12:07am
post #72 of 133
Quote:
Originally Posted by ceshell

Texas_Rose, that info ROCKS. It still doesn't answer the question though LOL. Does "a member of the public" mean "including any human being other than those living in the same home"? Or are friends/family defined as "private parties"? Because that is really what is at the heart of this part of the debate: is a close personal friend (I am NOT talking about "friends of friends") or a family member the same as a "consumer"?




That's why I had included the definition of a consumer. I couldn't find anything further about what constituted a member of the public in their definitions.

I guess it really comes down to how it is interpreted, by the health inspector, health department of a particular county, and so on.

Texas_Rose Posted 19 Aug 2009 , 12:13am
post #73 of 133
Quote:
Originally Posted by dkelly

(B) Food establishment includes:
ii) an operation that is conducted in a mobile, stationary, temporary, or
permanent facility or location; where consumption is on or off the premises; and regardless of whether there is a charge for the food.


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


That's interesting........regardless of whether there is a charge for the food. So you have friends over to your home for dinner, that would be considered a "food establishment"? icon_eek.gif




Exactly...I just had a party and there were some people there who I really don't know. So I guess I was serving cake and piggies-in-a-blanket to the public.

I'll be honest, when you read too much of TX code it just makes your head spin. I had to help my husband memorize a bunch of it for a test and none of it is written in a straightfoward manner. There's a million definitions for things and then you have to remember that the definitions in one section don't necessarily carry over to another. And then it turned out that his test was open book so we were studying for nothing icon_cry.gif

Deb_ Posted 19 Aug 2009 , 12:28am
post #74 of 133

Oh Texasrose that's hilarious about the open book test, totally something we would do.

yeastconfection Posted 19 Aug 2009 , 1:30am
post #75 of 133

What if my real cake tastes like a stryofoam dummy? Will that work?

Deb_ Posted 19 Aug 2009 , 1:54am
post #76 of 133
Quote:
Originally Posted by yeastconfection

What if my real cake tastes like a stryofoam dummy? Will that work?




Hey, it works for many bakers so why not for you too! icon_lol.gif

ceshell Posted 19 Aug 2009 , 4:26am
post #77 of 133

LOL! You will win the lawsuit too, when you bring a slice for the judge to taste icon_wink.gif

JaimeAnn Posted 19 Aug 2009 , 9:35am
post #78 of 133
Quote:
Originally Posted by tiggerjo

ok, have read most of this, not all so maybe this has been covered. a cake that is made for donations only is legal. the donation can be as little or much as you suggest. think bout it..a cake goes to the fair, anyone concerned about the judges sampling it....a cake is donated to the fire department or a church for a cake walk...anyone concerned where it was made or who made it. A person with severe food allergies usually will ask before eating ( make all ingredients from your donation knowlegable) and there should be no problem.




I am not sure about other states but In California you are NOT allowed to accept money for home prepared edible items even as a donation. NO Money exchange period! Can't call it a donation , Can't get reimbursed for ingredients, and most organizations here can't even have bake sales or Cake walks. California is very strict. Although every time I go to the grocery store I am propositioned by some lady or her kids to sell Tamales that have been in an igloo cooler all day and pushed all over the parking lot for hours on end ! Just because its illegal it doesn't seem to stop most people here.

CutePartyIdeas Posted 19 Aug 2009 , 11:26am
post #79 of 133

So you need a business license and access to a commercial kitchen... I don't suppose the cake police are going to come to your home if you don't have these for ocassional baking! Lots of people are passionate about baking cakes -- especially when it comes to baking kids birthday cakes. But if you're earning a living baking kids cakes (or wedding cakes for that matter), you'd better come square with the IRS. You're half-baked if you don't. =-)

MalibuBakinBarbie Posted 19 Aug 2009 , 6:03pm
post #80 of 133

I am often asked to do cakes for "stranger's" special occasions, because I work with gumpaste (flowers, etc.). However, I always turn them away. No license (to me) is like taking "work" away from someone else in the neighborhood, and I don't feel good about doing that. It is not the same as if I AM a business and therefore another bakery's competition. So I give my cakes away to friends and family only. If it's an occasion, then the cake becomes their gift. I would love to have a small specialty cake business in my kitchen, but I can't. About saving money to do something like that, well, the "dough" will have to come from some other means. (I just keep having to use my "bakery fund" to pay my bills! Arrrrgh!!!!) To the original poster and the rest of you, I do wish you the best of luck with your endeavors!

Deb_ Posted 19 Aug 2009 , 10:27pm
post #81 of 133
Quote:
Originally Posted by SugarLover3

I am often asked to do cakes for "stranger's" special occasions, because I work with gumpaste (flowers, etc.). However, I always turn them away. No license (to me) is like taking "work" away from someone else in the neighborhood, and I don't feel good about doing that. It is not the same as if I AM a business and therefore another bakery's competition. So I give my cakes away to friends and family only. If it's an occasion, then the cake becomes their gift. I would love to have a small specialty cake business in my kitchen, but I can't. About saving money to do something like that, well, the "dough" will have to come from some other means. (I just keep having to use my "bakery fund" to pay my bills! Arrrrgh!!!!) To the original poster and the rest of you, I do wish you the best of luck with your endeavors!




You've brought up a very interesting and important point SugarLover3.....I for one know how hard it is to compete with the unlicensed bakers in my area that can charge much less then me because they don't have the extra "business" expenses. It is frustrating for sure.

I hope you can someday have your specialty cake business....good luck to you!

HarleyDee Posted 19 Aug 2009 , 10:42pm
post #82 of 133
Quote:
Originally Posted by dkelly

You've brought up a very interesting and important point SugarLover3.....I for one know how hard it is to compete with the unlicensed bakers in my area that can charge much less then me because they don't have the extra "business" expenses. It is frustrating for sure.




That's a problem around here too. Lots of times un-licensed people will make cakes for the cost of the ingredients, or ingredients plus $50. Then people come to me and wonder why I quoted them $350 for a 4-tier cake when their "neighbor's daughter could do it for $175."

diamondsonblackvelvet13 Posted 19 Aug 2009 , 11:10pm
post #83 of 133
Quote:
Originally Posted by dkelly

I for one know how hard it is to compete with the unlicensed bakers in my area that can charge much less then me because they don't have the extra "business" expenses.




So...if an unlicensed baker charges just as much as you do, you wouldn't have a problem with them then am I understanding that right?

-K8memphis Posted 20 Aug 2009 , 12:47am
post #84 of 133

Yeah I got my butt handed to me one day on here because I thought someone was undercharging and she chewed me a new one about the folks in her neighborhood were underpricing her so bad.

I hope she felt better after that.

Deb_ Posted 20 Aug 2009 , 2:24pm
post #85 of 133
Quote:
Originally Posted by diamondsonblackvelvet13

Quote:
Originally Posted by dkelly

I for one know how hard it is to compete with the unlicensed bakers in my area that can charge much less then me because they don't have the extra "business" expenses.



So...if an unlicensed baker charges just as much as you do, you wouldn't have a problem with them then am I understanding that right?




If they would level the playing ground by getting licensed and charge accordingly, then I "wouldn't have a problem with them".

Making/selling an occasional cake is one thing, running a full fledged unlicensed business is another. That's where I take issue.

As HarleyDee pointed out it's impossible to compete with someone that's charging 50% less then her.

I have no problem with competitors as long as we're all on the same page legally.

Cheyanne25 Posted 20 Aug 2009 , 2:42pm
post #86 of 133

Sometimes I wonder if other industries have the same problem.

For almost every kind of legit business there are people who are unlicensed/hobby who will do it from their homes for a customer who will pay them.

I could see how equally frustrating it would be for a seamstress, photographer, florist, etc to be constantly undercut by people working out of their homes.

I suppose that that's just part of business eh? You build up your image so that clients have more confidence going to a legit/licensed professional over a cheaper at-home alternative. I'd really think in the end it's almost two different client bases you're after. Hmm....

Texas_Rose Posted 20 Aug 2009 , 3:02pm
post #87 of 133

The friends or relatives I bake for would be getting their cakes at Walmart if I wasn't doing it for them. And I don't stretch the "friends" thing to include anyone I live near or who my kids go to school with, etc...when acquaintances ask for cakes, I suggest a bakery to them (unless they're a real PITA, then I suggest a home baker who I don't like).

What's really ironic is that I would love to work for a bakery, even a few hours a week, and can't find a job. That would be enough of a creative outlet for me.

Deb_ Posted 20 Aug 2009 , 4:46pm
post #88 of 133
Quote:
Originally Posted by Texas_Rose

[b](unless they're a real PITA, then I suggest a home baker who I don't like).





icon_lol.gif

indydebi Posted 20 Aug 2009 , 4:51pm
post #89 of 133
Quote:
Originally Posted by Cheyanne25

Sometimes I wonder if other industries have the same problem.



Absolutely. My father in law ran a mechanic business for 60 years. He'd get people complaining about his cost because some neighbor guy who worked on cars in his back alley garage could do it for 1/3 of the price! FIL would start asking, "Are they insured if they do something wrong to your car? Will they stand behind the repair if it doesn't work? is your car covered by insurance if someone breaks into it and steals your radio while it's at this guy's place? Does he have a multi-thousand dollar lift so he can get under the car to fix it right? Did he invest in all of the computer equipoment needed to work on your model of car, like I have? Does he pay payroll taxes and property taxes and inventory taxes?" And so on and so on.

itsacake Posted 20 Aug 2009 , 5:12pm
post #90 of 133

I live in a "big city" in California with multiple inspectors and I gave away cakes for four years because I wanted to be very sure I wasn't breaking the law.

However, I called the Health Department frequently during those four years trying to figure out a way to be legal. Three or maybe four different inspectors in two different counties basically told me that if I wasn't running a business I would be fine to sell to my family and friends. One inspector even told me that if I baked in my synagogue kitchen (which is unlicensed) and sold only to synagogue members, that that would be fine because it would be the same as selling to the family since we are all voluntarily a "group." Clearly the departments here recognize that they are here to regulate business and they don't consider being reimbursed by or selling to your "family" a business

Now that I am legal and in the process of buying a shop so I can stop renting space, I spoke with planning departments in 4 different neighboring cities about zoning. I want to be able to make cakes and pastries and also teach some classes that have been requested and have tea parties. In all four cities, for the places I was looking at, I was told I can bake, but not do the other two things because I would be in an industrial zone and parties and lessons are not within the use, for that I'd need retail space which I can't afford. However, all four plan check people told me pretty much the same thing" "You know we don't come out looking, so if it is occasional use and not the main part of your business, we'll never know" I find that very frustrating.....

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