MrsNancyB1 Posted 15 Aug 2009 , 7:52pm
post #1 of

So I'm trying to find a loophole in the law in California, so that I can still make cakes for friends etc, and still get some money for them. I really enjoy making cakes, but I don't think I can sustain making them for free.

Anyways, I also have an interest in bow-making. I've been making bows for about a year, and I've sold several of them to friends with daughters.

So here's what I'm thinking to do. If someone orders a cake from me, I'd like to make the cake and make them a bow too (provided they have a daughter, otherwise I would have to handcraft something else). Then, I'm thinking to 'sell' my friend the bow for the cost of the cake (ie. $100). This way, I'm selling the bow, rather than the cake. Obviously the bow can't be eaten, so I'm still technically abiding by the law.

What do you think about this? Is this shady thinking to begin with? Is this even a feasible option? Can I realistically do this?

Please advise me. I really want to continue, but I don't want to break any laws. In fact, I'm hoping that the money that I make from the sale of the bow will be enough for me to eventually rent a commercial kitchen to avoid this loophole altogether.

TIA!

132 replies
-K8memphis Posted 15 Aug 2009 , 7:59pm
post #2 of

We can all do anything we want but no that's not viable or legal or anything.

luminajd Posted 15 Aug 2009 , 8:06pm
post #3 of

I am a lurker here but will give you my opinion.
Very shady. What if you sell someone a bow for $150 and they also get a cake, which happens to make them sick, requiring hospitalization. They now sue you. It is their word against yours, them saying you sold them a cake. Is your defense really that you sold a $150 bow?
There are lots of very savvy posters on here. My guess is if there were a legal loophole, you would have read about it already.

indydebi Posted 15 Aug 2009 , 8:15pm
post #4 of

It has been suggested on here before that a baker sell the customer a cake box for $100 and oh yeah by the way there happens to be a free cake in there, too! icon_rolleyes.gif

Litmus test: Will a judge see right thru that?

My opinion? In a heartbeat!

Texas_Rose Posted 15 Aug 2009 , 8:33pm
post #5 of

I think you'd be better off trying to say, "Oh, I didn't know I couldn't do that," than trying to convince someone you were just selling the bow. Also, it would sound weird to your customers...you have to buy a bow but you get the cake free, because I'm not allowed to sell cake. So you're telling them you're doing something illegal, which makes you vulnerable to different problems.

Why don't you stick to making cakes for your close friends? The ones you don't have to come up with a loophole for because you know they won't report you to the health department. People have suggested different loopholes to me, but eventually I hope to have a business, and I don't want to have a record of doing the wrong things when I start my business. I do still bake for friends and I let them buy the supplies. That's not legal either but they get upset when I tell them I can't make them a cake, and then I feel guilty and end up doing it for free since it's not legal to charge, and then I blow my grocery budget on someone else's cake.

CutiePieCakes-Ontario Posted 15 Aug 2009 , 8:48pm
post #6 of

You should check your local regulations as well. And maybe contact a lawyer (or law association) for a bit of free advice. Most can give you a rough yes/no answer.

I'm sure that some people have spent way more than $150 on a bow - no one I know, though. Usually, people with more dollars than sense (cents).

MrsNancyB1 Posted 15 Aug 2009 , 10:06pm
post #7 of

Thanks everyone.

It's a sad realization that my dream may be coming to an end. icon_sad.gif I really enjoy making these cakes. I'm already making one for a friend, but I will not charge anything for it.

I want everything that I do to be legal, because *if* somewhere down the line I do have the means to open up my own shop, I don't want any skeletons in the closet to follow me.

My only other avenues are to contact church/school kitchens to see if anyone will rent the space to me. I'm not sure if they will even allow that.

Thanks again.

indydebi Posted 15 Aug 2009 , 10:10pm
post #8 of
Quote:
Originally Posted by MrsNancyB

My only other avenues are to contact church/school kitchens to see if anyone will rent the space to me. I'm not sure if they will even allow that.



If they do, don't be afraid to think outside the box.

I have a caterer friend who gets a kitchen rent free. She cleans the church once a week at no salary. They let her use their kitchen for no rent. A sweetheart deal, if I ever heard of one! thumbs_up.gif

kelleym Posted 15 Aug 2009 , 10:13pm
post #9 of

Just contact your county's health department and ask them if you can sell cakes to your friends and family. Even in one of the strictest counties in one of the strictest states (Texas), my Health Dept. rep told me I could sell cakes to people I know "and even a couple of weddings a year".

Not friends-of-friends.
Not referrals from friends.
Not people who say they know me so I can do their cake.
Just people I know.

Just ask them. You may be pleasantly surprised by the answer.

I agree with the others about the "sell a bow for $100" plan. No, doesn't work.

3GCakes Posted 15 Aug 2009 , 10:24pm

It's frustrating, huh?

Makes me glad I live in Ohio.

Kelleym has a great suggestion, though. Most HD's know that at some point, someone at home will make something and atleast have to be reimbursed the cost of making it.

Many prefer you keep that circle very tight, as well.

It's worth checking into.

Atleast you get to practice, and aren't working for free. Check it out.

Uniqueask Posted 15 Aug 2009 , 10:24pm

I agree with kelleym, when I called my county's HD he told me if I sell 2 cakes a week from my home, he dosen't care because it is a grey area I am suppose to go through the Dept of Ag If I don't have a seperate Kitchen But they told me only if I am selling to Farmer's Market

kelleym Posted 15 Aug 2009 , 10:32pm

Oh yeah, and if you get an answer that you like, write down that person's name and phone # just to cover yourself. thumbs_up.gif

costumeczar Posted 16 Aug 2009 , 1:29am
Quote:
Originally Posted by kelleym

Oh yeah, and if you get an answer that you like, write down that person's name and phone # just to cover yourself. thumbs_up.gif




Yeah, because the next person you call and ask the same question will tell you no way, no how!

HarleyDee Posted 17 Aug 2009 , 9:35pm

Also, do you have any community centers or senior citizen's buildings in your area that have a health rated kitchen? That's what I do. My office is in my home, but all of my cakes come from a local community center. They only charge $35 for 2 hours, then an add'l $5 per hour after that.

We have a culinary center that rents kitchen time too but they're really expensive ($25 an hour). But apparently for the culinary center or the comm. center kitchen, as long as most of your finished product comes from there, it's ok. Like, you could bake your cake layers at home, and then decorate them at the culinary center and it's considered okay.

indydebi Posted 17 Aug 2009 , 10:00pm
Quote:
Originally Posted by HarleyDee

Also, do you have any community centers or senior citizen's buildings in your area that have a health rated kitchen?




Check with your HD. Just because the community center kitchen isn't HD approved, doesnt mean you can't use it.

My caterer friend uses a church kitchen. It was not a HD approved kitchen but the HD came in and did the approval process for her use. I know another caterer who uses a community center kitchen that is not HD approved for the comm ctr, but she got HD approval for her use.

So dont' let that barrier stop you. Check and see anyway.

HarleyDee Posted 17 Aug 2009 , 10:44pm
Quote:
Originally Posted by indydebi

Quote:
Originally Posted by HarleyDee

Also, do you have any community centers or senior citizen's buildings in your area that have a health rated kitchen?



Check with your HD. Just because the community center kitchen isn't HD approved, doesnt mean you can't use it.

My caterer friend uses a church kitchen. It was not a HD approved kitchen but the HD came in and did the approval process for her use. I know another caterer who uses a community center kitchen that is not HD approved for the comm ctr, but she got HD approval for her use.

So dont' let that barrier stop you. Check and see anyway.




Oh definitely! I just mentioned finding a HD rated kitchen so that you wouldn't have to pay that fee. But like indydebi said, don't let that stop you!

Deb_ Posted 18 Aug 2009 , 12:13am

I'm amazed that a HD person would "give permission" to someone to sell cakes to "just family/friends" in a state that doesn't allow home kitchens to be licensed.

Is this "permission" he gave "in writing as law"? icon_confused.gif Is it "an exception" to the current law? IDK...I'm just asking.

Here's an interesting scenerio...an unlicensed baker sells a wedding cake to a family member (with permission from the HD inspector)....people at the wedding who don't know the baker get ill or have an allergic reaction to something in the cake, inevitably they sue the baker. Will that HD inspector stand behind his "word" that he gave the baker permission to sell to "family/friends"?

That's a chance I'd be afraid to take.

There are just too many gray areas when it comes to this.

To the OP, I know it's frustrating....I lived in a state for 20 yrs that didn't allow home kitchens to be licensed...we moved to MA 5 yrs ago because I wanted to pursue this business. Personally, I always felt that the repercussions that could come from selling cakes illegally were just not worth the risk of losing my home.

I think that's the important thing to think about. Does the reward outweigh the risk?...for me it didn't.

flourpowerMN Posted 18 Aug 2009 , 12:25am

I agree that you need to check with the Dept of Ag in your area.

For the record, my local (MN) rep told me that as long as I was not advertising and only getting cake orders via word of mouth, that I did NOT need a license. And, I would be violating any law if I took payment for said cakes.

So yes, you can believe what the Dept of Ag tells you. Am I still going to get licensed? Yes, because I want this to be a business and not a hobby. But, it's nice to know that I don't have to go into debt while I'm in the "practice" stage.

HTH!

indydebi Posted 18 Aug 2009 , 12:32am
Quote:
Originally Posted by flourpowerMN

For the record, my local (MN) rep told me that as long as I was not advertising and only getting cake orders via word of mouth, that I did NOT need a license.




This totally makes no sense to me. Sounds like a case of "As long as you're not advertising, then I can pretend I don't know about you, and then I dont' have to actually do any work and track you down."

The health dept has a concern about proper food handling ONLY if it's an advertised business that they can't pretend doesn't exist, therefore if you DON'T advertise, they're not at fault for NOT making the person comply with the rules and guidelines because they can hold up their hands and claim 'Gosh *I* didn't know nuthin about 'em!.

icon_confused.gif

costumeczar Posted 18 Aug 2009 , 12:51am

It sounds to me like a lot of HD employees are giving out the old "As long as we don't know about it we won't do anything about it" advice (I got some of that when I first asked about opening a business.) I personally think it's too risky to operate in that kind of situation. If it's not legal in your state, it's not legal, so if you get in trouble with a customer they won't let you off because "someone said it was okay." It just makes me nervous for people who think it's okay to get around the laws because of some questionable permission given by random HD people...Be careful taking advice just because it's what you want to hear.

Deb_ Posted 18 Aug 2009 , 12:58am
Quote:
Originally Posted by costumeczar

It sounds to me like a lot of HD employees are giving out the old "As long as we don't know about it we won't do anything about it" advice (I got some of that when I first asked about opening a business.) I personally think it's too risky to operate in that kind of situation. If it's not legal in your state, it's not legal, so if you get in trouble with a customer they won't let you off because "someone said it was okay." It just makes me nervous for people who think it's okay to get around the laws because of some questionable permission given by random HD people...Be careful taking advice just because it's what you want to hear.




Exactly what I was thinking.....cuz I'll guarantee you if there's a lawsuit, they'll pretend they never spoke to these bakers or gave them permission.

I'm completely flabbergasted by this. icon_eek.gif

kelleym Posted 18 Aug 2009 , 3:00am
Quote:
Originally Posted by dkelly


Is this "permission" he gave "in writing as law"? icon_confused.gif Is it "an exception" to the current law? IDK...I'm just asking.




It's a "she" and I have her name and phone number if you're really interested and you'd like to speak with her.

Quote:
Originally Posted by dkelly

Here's an interesting scenerio...an unlicensed baker sells a wedding cake to a family member (with permission from the HD inspector)....people at the wedding who don't know the baker get ill or have an allergic reaction to something in the cake, inevitably they sue the baker. Will that HD inspector stand behind his "word" that he gave the baker permission to sell to "family/friends"?




What does it matter? The Health Department didn't give me liability insurance, they told me they won't come after me if I sell cakes to a VERY limited circle of my own friends and family (and most of my friends are cakers, y'all, they don't need to order cakes from me). I'm not a licensed business so I can't have liability insurance. If someone decides to sue me, I'm SOL. Yes, I am taking the risk wholly upon myself if I provide the cake for someone else, paid or unpaid. This is another very good reason for me to limit my cakes to friends and family.

A health department license is not liability insurance. She didn't exempt me from being sued, she told me that the HD won't come after me if I stick to my own first-hand circle of friends and family.

Quote:
Originally Posted by dkelly

There are just too many gray areas when it comes to this.




You betcha. I'm glad my HD Rep recognizes that.

Quote:
Originally Posted by costumeczar

It sounds to me like a lot of HD employees are giving out the old "As long as we don't know about it we won't do anything about it" advice (I got some of that when I first asked about opening a business.) I personally think it's too risky to operate in that kind of situation. If it's not legal in your state, it's not legal, so if you get in trouble with a customer they won't let you off because "someone said it was okay." It just makes me nervous for people who think it's okay to get around the laws because of some questionable permission given by random HD people...Be careful taking advice just because it's what you want to hear.




It wasn't "questionable permission" in my case, it was a detailed conversation with a high ranking member of the health department who was also my rep when I DID have a licensed business. And I am not "getting around" a law. I am not "operating". But if a friend from church calls me and says I am the only one she would want to make her wedding cake, then yeah, I'm doing it. And getting paid for it.

I am not advocating that anyone "operate" without a license. I'm saying, call your Health Department and have a conversation with someone.

Quote:
Originally Posted by dkelly

Exactly what I was thinking.....cuz I'll guarantee you if there's a lawsuit, they'll pretend they never spoke to these bakers or gave them permission.

I'm completely flabbergasted by this.




So what if there's a lawsuit? What does the HD have to do with that? They don't sell insurance, they license food establishments.
I'm "completely flabbergasted" that some people can't understand the difference between a license and liability insurance.

Deb_ Posted 18 Aug 2009 , 12:35pm

Kellym I own 2 businesses, one is a very successful spa/salon with 12 employees which is also inspected and licensed by the BOH, the other my home baking business.

You don't have to tell me that the "HD license isn't liability insurance", I think I'm well aware of what liability insurance is, I pay the bills for it.

What I'm "flabbergasted" about is the fact that he/she or whoever in whatever state, would tell someone it's OK to sell to family/friends because "I'm not coming after you."

Why the heck do we have laws if these people who work for these very departments are basically telling people that they don't have to follow these laws? "There are loopholes in these laws and I'll tell you how to get around those loopholes". That's basically what these people are saying, no?

THAT'S what I'm flabbergasted about.

You obviously understand that there is a risk and you're willing to take that risk, that's your business.

I'm sure there are others out there that have been told the same thing and feel that this "conversation" with the HD person protects them. I want them to understand that it doesn't....because I'll guarantee if there's a complaint or a sickness reported from a cake, the HD WILL come after the baker. They'll be sure to cover their own butts, not the bakers.

No, I don't want your HD persons number thank you.....after dealing with the HD in both MA and RI where my salon is, I can tell you their employees don't impress me at all. icon_rolleyes.gif

-K8memphis Posted 18 Aug 2009 , 12:52pm

As they say, the only law is the law of public opinion.

I mean it's ok to bake a coupla cakes for your family and close friends. It's not that the Health Department is not upholding The Law. It's that The Law has interpretations and lines are drawn.

For Kelly, she spoke to someone and they said, the line is drawn right outside your close circle of friends and family.

What's a matter with that.

I'm gonna say something ridiculous a bit--I mean the republic is not gonna fail for us to make a damned cake for our daughter's or our neice's wedding or something.

Here's something else that really irritates me. icon_biggrin.gif

Read this in my favorite whiney high squeeky voice ~~ "If someone gets sick from your cake and they sue you..." Oh. My. Gawd. I just can't even think about this one more time.

I have it firmly placed in my mental file box named, "When The Sky Fricken Falls..."

Life is risk. It's gonna be ok. We are insurance rich and life smarts poor. What if What if What if
Do we want out life's work to be that of insuring ourselves against every maybe on the planet?
I'm not Susie-take-big-risks. I'm pretty shelf stable, chicken-ish in my own way but I don't know. ..relax a little. It's really gonna be ok.

Maybe we should all add one clause that says "and I am protected from anything else that happens too. a.) on sunny days b.) when it rains."

icon_biggrin.gif

Go 'head, shoot. I live in Memphis I'm used to gun fire. (kidding... kinda...)

Deb_ Posted 18 Aug 2009 , 1:05pm

LOL Kate, I'm not gonna "shoot".

Thank goodness in the almost 30 yrs I've been baking I haven't harmed or killed anyone yet....knock wood. LOL!!

I just think a lot of these public officials are a bunch of clowns that's all I'm saying.


Here's another example of my dealings....we have "protected wetlands" on our property....we had to dig a new septic a couple of years ago (and my house was built in 03/04 icon_eek.gif ).

We had the Dept of Environmental Management out here to inspect the new location and he asked us why we were digging a new septic on such a new property. We were having issues with our washing machine causing our septic to back up....ya know what he told me? "Run a hose into the woods." We told him those were protected wetlands (which he should have known since he inspected the site) His response "I won't tell".


Well, we spent the 20k and dug the new system because I wanted to be able to sleep at night.

They're MOSTLY clowns these people....and our tax money pays their salaries. icon_rolleyes.gif

tracycakes Posted 18 Aug 2009 , 1:14pm

You don't have to look at just your church or schools. I'm going to rent a kitchen from a donut shop. It works great for me because they go in early and out by noon. I'll be going in after I get off at 5:00 on Monday thru Thursday. I work Mon - Thur for 10 hour days and I'm off on Friday. On Friday, the busy cake day, I can get to the donut shop by 1:00 or 2:00 and work and late as I need to.

We were looking at the some restaurants that serve breakfast or breakfast and lunch only. We were so blessed that the first place we inquired was all for allowing us to rent. she is a super nice lady and will be easy to work with. We came to a lease agreement together, we've had our lawyer write it up and she is taking it to her lawyer. This will protect both of us. It isn't far from my house and will be an awesome work situation.

If you really want to do this, look around at other options. I have all of my legal paperwork, business license, tax permit, LLC operating agreement, tax ein number, liability insurance. My plan is to open a storefront in about a year and everything will just transfer with appropriate updates for insurance, address, etc.

Sorry this is so long. I just wanted to let you know that you don't have to limit yourself. There are other kitchens available.

-K8memphis Posted 18 Aug 2009 , 1:16pm

Deb, yeah say you took that guys advice and then the next Dept of EM comes out and says, you're getting a big fine and you gotta fix it. Danged if you do danged if you don't.

20K <faint>

costumeczar Posted 18 Aug 2009 , 1:39pm

Okay, I was going to quote another message to refer to, but my response screen is acting crazy...

Kelley, of course we recognize the difference between HD licenses and liability insurance, that's not the issue. The issue is that if someone is taking advice from a HD rep who tells them that it's okay to sell cakes to a certain group only (family and friends) even though it's not legal to sell out of your home, that's bad advice.

You also said that you're not "operating" anything, but also said that if you got a request from a church friend to do a cake then you'd do it and get paid for it. That's operating a business, albeit on a small scale.

If you want to take the risk, then go ahead. I don't want to, so I follow the laws and get my licenses and insurance. I just know that when I call my HD with a simple question I'll get three different answers from three different people, so I think that we need to be aware that a long conversation with someone doesn't supercede the laws as they're written for your state. If you don't like the laws, try to get them changed, but don't assume that people at the HD can waive the regulations by virtue of aying "we'll look the other way." You can rest assured they won't if it comes down to whatever they have to do to cover their own butts.

kelleym Posted 18 Aug 2009 , 1:59pm
Quote:
Originally Posted by dkelly


Why the heck do we have laws if these people who work for these very departments are basically telling people that they don't have to follow these laws? "There are loopholes in these laws and I'll tell you how to get around those loopholes". That's basically what these people are saying, no?




No.

In my case, she's telling me where the line is before her department considers me a food manufacturer, which would require a license. Contrary to popular opinion, the law is not "you can't take any money for a cake or else you're a business!!"

Selling a wedding cake to a friend does not make me a food manufacturer.

Everyone takes a risk preparing food and serving it, whether to their own family, a church potluck, or a friend's wedding - whether money is exchanged or not. Food carries inherent risk, but fortunately many states, including yours, have recognized that some bakery items carry lower risk of making people sick. I don't lose any sleep at night after I make a cake for someone I know. Cake is pretty safe. And thank goodness for that. icon_smile.gif

tiggerjo Posted 18 Aug 2009 , 2:05pm

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.

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