Push Back From Health Dept On Cottage Foods Act?!?!?!

Business By JoanieB Updated 4 May 2011 , 12:00am by Freedomx6

JoanieB Posted 28 Apr 2011 , 7:13pm
post #1 of 44

So, I tried to apply for a business license the other day for my home office to help with my expenses. Now that the cottage foods act passed here in Arkansas (house bill 1323, act 72) I plan on selling my cakes. They wouldn't let me saying they don't allow that (even though it's for an office not my kitchen) they never heard of it etc. It only passed this February but I told them the bill number.

She told me she would look into it (even though the health dept said they don't regulate that anymore cause of the new act) and get back with me. She didn't get back with me so I called. I was informed she spoke with someone at the state health department and they said that law is intended for only farmer's markets and that I can't make and sell cakes. WTF?

Here is the verbage from the Arkansas house of representatives website under this bill.

"AN ACT TO EXEMPT COTTAGE FOOD OPERATIONS, FARMERS' MARKETS, AND OTHER SIMILAR FOOD SALES ENTITIES FROM PERMITS REQUIREMENTS AND TO DECLARE AN EMERGENCY."

"(1) "Cottage food production operation" means a person who produces food items in the person's home that are not potentially hazardous foods, including without limitation:
(A) Bakery products;
(B) Candy;
(C) Fruit butter;
(D) Jams;
(E) Jellies; and...."

Sooo, what am I missing here?????

43 replies
jason_kraft Posted 28 Apr 2011 , 7:25pm
post #2 of 44

I would go to the health dept in person and bring a printed copy of the bill with the relevant parts highlighted. Keep asking for supervisors, all the way up to the county board if necessary. If you still can't get a resolution, contact your state senator or representative.

online_annie Posted 28 Apr 2011 , 7:48pm
post #3 of 44

I STRONGLY second what jason_kraft has said. You will need to hit them over the head with this information countless times until they get so tired of you, they will actually follow up with the matter, through the proper channels JUST to get rid of you. Best of luck and do keep us posted! Illinois is getting ready for this same battle...fingers crossed! Luckily for the people in my surrounding counties, the health depts. have been the ones contacting all of the locals and keeping everyone informed. YEAH!!

cakesnglass Posted 28 Apr 2011 , 7:55pm
post #4 of 44

I live in FLa. and have my fingers crossed that we may be next. I work full time for the Building Dept. in my county. You do need to ask for a Supervisor in these cases. In my area the Planning Dept. will probably be involved in the permit process. The offices are probably not aware that the bill passed and now they must figure out how to implement it in your area. Good Luck!!

LindaF144a Posted 28 Apr 2011 , 8:47pm
post #5 of 44

Also check with your Department of Agriculture. We have the same law here in NY, but for Home Processing Permits for use as you stated it is issued through the Department of Agriculture and not the Department of Health. Crazy, I know. But that is how it is.

I can sell cakes, but through the Farmer's Market and through wholesale. So I could go to my local high end party place up the street and make a deal that I would make their wedding cakes here at my home. That would be considered wholesale. I know quite a few people who do it from their homes here in NY. If you have a wholesale business you are Dept of Ag, if you retail your are Dept of Health.

I am moving from Dept of Ag to Dept of Health when I open my store. Actually I don't even make anything to sell from my home because I am so busy opening the store I don't have time.

HTH

JoanieB Posted 28 Apr 2011 , 8:53pm
post #6 of 44

The city clerk is trying to tell me that since my city has never allowed it before that regardless of this bill it's illegal for me to bake and sell from my home...even though they didn't know about this bill until I told them two days ago. I've got my lawyer friend looking into it but I feel bad asking her this stuff since I'm not actually paying her LOL. I tried to go to the local health dept where I had spoken on the phone to a man that told me about the new bill and well...I somehow got lost and couldn't find it. So, that's for another day I think. I'm so fired up right now I can barely see straight.

babycakes77 Posted 28 Apr 2011 , 9:15pm
post #7 of 44

JoanieB, I'm sorry you're having this problem. I'm in Little Rock and got my business license recently. I went back and forth with the office that issues business licenses and educated them about the bill first. Since I was diligent, they approved me for a license under the Cottage Food law. I had to get approval from the zoning department first, take that to the office that hands out the licenses (forgot the name of the office). After that I applied for a DBA and then my state sales tax ID. The rules are probably a little different for you since you're in North Little Rock but they shouldn't be too different. You really have to educate these employees because they have no clue about law changes. Good luck!

cakesbycathy Posted 28 Apr 2011 , 9:18pm
post #8 of 44

Maybe you can barter some legal work for cake icon_smile.gif

If the Health dept didn't even know about the law until you pointed it out they clearly need some "help" getting up to speed. A nicely worded letter on some legal stationary as well as perhaps a phone call or letter from your state representative or senator might move things along.

JoanieB Posted 28 Apr 2011 , 9:45pm
post #9 of 44

Babycakes, I applied for a business license for a home office through the planning committee in NLR but they just signed off on it and checked boxes that I couldn't change the appearance of my house, sell or store goods and products from my house and some other things. Now, I guess technically I would be in violation of sellling but they knew what my business was and I even had a woman there ask me for my card. It was only when I had to go to city hall I got push back and then a woman claiming the health dept said it only applies to farmers markets. In that case I could say, I sell my cakes at farmers markets. Whatever. My lawyer friend said they can't exclude themselves from the new bill so we'll see. I always feel like regardless of where I go I'm trying to tell people how to do their jobs...no one likes that person LOL.

jason_kraft Posted 28 Apr 2011 , 10:43pm
post #10 of 44
Quote:
Originally Posted by JoanieB

Babycakes, I applied for a business license for a home office through the planning committee in NLR but they just signed off on it and checked boxes that I couldn't change the appearance of my house, sell or store goods and products from my house and some other things.



If the municipal zoning board says you can't sell products from your home, then that does override the state cottage food law, since there is almost always a clause that allows municipal laws to apply. You will probably need to apply for a zoning variance.

babycakes77 Posted 29 Apr 2011 , 2:14am
post #11 of 44

So they said you can't sell at all? For me, they just said I couldn't turn my house into a storefront or have customers come to my house, but I could definitely sell directly to the customer and deliver.

scp1127 Posted 29 Apr 2011 , 7:57am
post #12 of 44

The state sets minimum standards and the counties can increase, but not decrease the requirements. My county requirements are just shy of FDA requirements. The next county over is so lax, you wouldn't want to eat in their restaurants. If the cottage law does not fall under the HD, then they don't have to know the law. Chances are it is Dept of Ag or you can call the State Health Dept in your state capital. The way to do this is to ask for the applications in each department and read it for yourself. Anyone you speak to could be mis-informed and that does not override the law.

dreamacres Posted 29 Apr 2011 , 12:08pm
post #13 of 44

Not sure of your experience but I can try to explain mine. I live in Indiana and our home is zoned ag, which makes us OK with zoning. Our cottage bill allow baking of non perishiable items to be sold at roadside stand... aka outside the house but on property. I can not deliver, but am allow to take orders. My health dept. also was not aware of the cottage bill and advised me no baking in the home, period. After forwarding to them a copy of the cottage bill we got everything worked out. They said no other action was needed on my part, no business license needed, I was good to go. The labeling is very important and must state that the item was prepared in a non- inspected kitchen along with weights, ingredients, etc. A very limited recipes can be used, no items needing refigeration. So if our property was not zoned ag, I would be out of luck. The bill is designed for baked goods to be sold at farmers markets/roadside stands, it is not written for a hobby baker to run a cake design business out of their home on the same level as an approved bakery. I really do not understand the delivery thing, because it sometimes put a third party in the picture of handling the cakes, more hands more chances of baked goods being mishandled!!! I fear many home bakers are hearing a cottage bill is being passed and they can then "be legal" to operate as a approved bakery and many times this is not the case. Yes you can sell cakes but in my case you are very limited. Hope this helps.

JoanieB Posted 29 Apr 2011 , 2:47pm
post #14 of 44

I spoke with my lawyer friend and she says as long as I have a business license and I just filed for an LLC and tax ID with the state I should be fine. She said I won't need a zoning variance and the Arkansas cottage foods bill does not limit it to only farmer's markets. She said that if they tried to shut me down then they would have to shut down every person that sells pampered chef, avon, mary kay, etc because as far as our zoning is concerned it does not say I can't bake out of my home just that you cannot sell products out of your home.

In that case, I only take orders, I don't have people coming into my home like it's a bakery. No restrictions on deliveries so that's strange you have that. I definitely agree more hands make for more chances of the cake being mishandled. If the city tries to push it my neighbors and my lawyer friend that specializes in business law, will all come to bat for me. I'm not causing any adverse effect on the neighborhood and it's my neighbors I get the most business from. I guess we'll just have to see how this plays out.

jason_kraft Posted 29 Apr 2011 , 3:59pm
post #15 of 44
Quote:
Originally Posted by JoanieB

I spoke with my lawyer friend and she says as long as I have a business license and I just filed for an LLC and tax ID with the state I should be fine. She said I won't need a zoning variance and the Arkansas cottage foods bill does not limit it to only farmer's markets. She said that if they tried to shut me down then they would have to shut down every person that sells pampered chef, avon, mary kay, etc because as far as our zoning is concerned it does not say I can't bake out of my home just that you cannot sell products out of your home.



Advising you that it's OK to ignore municipal zoning ordinances because other people also do it seems like shaky legal advice, especially since you already signed a document with the planning board agreeing that you would not sell or store products in your home.

You will probably be OK since I doubt your business will generate a noticeable amount of additional traffic on your street, but I would have the zoning variance documents ready to go in case the town shuts you down, since the law is on their side.

howsweet Posted 30 Apr 2011 , 7:11pm
post #16 of 44

If it just passed, it may not take effect until a certain date.

Karen421 Posted 1 May 2011 , 3:22am
post #17 of 44

I think the problem is - that the law is new and very few people are aware of it. We just have to educate them on it, or be patience and wait until they catch up. icon_rolleyes.gif

jason_kraft Posted 1 May 2011 , 3:27am
post #18 of 44

The issue here seems to be municipal zoning. In order to operate legally you need to be compliant with both the dept of health (usually at the county or state level) AND your town's zoning rules. The cottage food law covers the former, but final zoning approval is up to municipal govt and has nothing to do with the cottage food law.

Karen421 Posted 2 May 2011 , 11:51am
post #20 of 44

That was published before the bill became a law. I really think it's just a matter of the employees catching up. Babycakes77 was able to get it all straighten out, but she had to be the educator. That's what we will all have to do in our towns for a while. In my opinion. thumbs_up.gif

JoanieB Posted 2 May 2011 , 1:18pm
post #21 of 44

Initially it seemed that the the health dept was going to give push back because that's what the city clerk had told me. Even though I was told by the health dept personally that under the new law they couldn't regulate that anymore. I spoke with them because I was trying to have my kitchen certified if it was possible. While they didn't agree with it, they still said I could bake whatever I wanted.

The zoning office didn't say anything to me about it when they signed off on my "office only" business license. It was when I took my permit to city hall, to have them process it, they seem to be concerned with me "selling poducts" out of my home and that I can't bake things in my home and place them for sale.

It seems to me, that the cottage food act satisfies the fact that I can bake products for sale from my home. The only thing I need to satisfy now is the zoning issue of selling products. Here's my problem. I'm afraid that if I go back to the planning comittee (zoning) that I'll just be told no, and forever be on their radars. However, I might have already done that with the city clerk. I think she's going to make it her personal mission to see I can't go about this legally. I have yet to receive the license she said she mailed. It only takes one day to receive mail from inside the Little Rock area.

I'm really sick to my stomach over this. I'm afraid of having my dreams shot down and breaking down into tears in their office. I know I could file for a variance but I know that's pricey and a lengthy process. I also know that "legal" bakers and professionals in this business despise us home bakers regardless of cottage food act or not. I'm just trying to find a way that I can offer my products and help contribute some income to my family while being with my baby and doing something I love.

I spent 2005-2009 attending college full-time getting my Bachelor's in HR management and business admin. I got pregnant with my 3rd child before I graduated and have been staying home with my baby. I've applied to over 200 places for jobs and can't get hired, let alone an interview. I'm either over qualified or I don't have any experience to accompany my degree or no one will touch me because I haven't held a job since 2005.

I don't want to do this unless I can do it legitmately. It's too much stress otherwise. I guess I just need to get some courage and go back there and see what I can do.

madicakes Posted 2 May 2011 , 2:01pm
post #22 of 44

What may be happening is that it may not be allowed in your local area (county, township, minicipality, etc) even though it is allowed by the state. The local ordinances supercede the state in these cases. I have to get approval from my township before I can get licensed with the Dept of Ag. I have my supervisor's meeting tomorrow and should find out then whether I can apply with the Dept of Ag.

louanne Posted 2 May 2011 , 3:06pm
post #23 of 44

Just to let you know, i am a shop owner, and i do not despise home bakers, i am a little miffed that the cottage law passed just 6 months after i opened my shop, after the HD chewed my rear for baking from home until i was able to prove all my cakes were for family/friends and not paid for........i am happy for the home bakers, they just need to make sure they are following the laws and zoning and please do not under cut the shops just because you have less overhead............

on another not, as far as your "office only" zoning, the push back, once all parties are informed of the cottage food act, might be coming form the fact that in your area your not suppose to operate a business where clients are in and out, in which case make your policy a delivery only one, that should help you get around that issue, also if you can have pick ups from your home be sure to get with your insurance company, when we were running an office from our home for event pallning we had to get and extra rider ( like maybe 75 a year) to cover the equipment ( computer phone, etc) in the office and to cover and accidents someone might have on our property in the course of business operations, other wise if you have someone picking up a cake and they trip and fall, your home insurance will not cover the expense if you do not have the home business rider on your policy.

I wish you luck and hope you can get things worked out!!

louanne Posted 2 May 2011 , 3:17pm
post #24 of 44

oh, and i was a stay at home mom too! I wouldnt change it for the world but last year when i tried to go back to work it was a nightmare finding a job even though i was highly educated and had plenty of work experience before my daughter was born. when i finally found a job the company was bought out and got rid of all the office staff to move it to their central office, after a few months an opprotunity came up for me to finally open my own shop ( my forever dream!) with minimal investment.

It's tough, i know, but things will work out, i'll say a litttle prayer for you!

Good Luck!!

Keciak Posted 2 May 2011 , 3:51pm
post #25 of 44

Anyone in Oregon trying to bake cakes etc out of their home kitchen? I looked in to the law and licensing and was pretty disgusted. I could get a domestic kitchen license to bake and sell things if I didn't have children or pets. Not to mention you have to have a health department inspection first. There can be no pets in the kitchen (ever) and no people other than employees during the hours of operation. I could make my teenagers employees and that would solve that problem but my home has a totally open kitchen, dining and livingroom area and there's no way to keep people out during certain times in order to cook. How can anyone legitimately make and sell cakes out of their kitchen? I find it hard to believe that all the people who post about their cake making ventures have no kids or pets.

louanne Posted 2 May 2011 , 3:59pm
post #26 of 44

regulations are different in every state, some say no pets whatsoever in a house with a home based kitchen, some just say no pets in the kitchen itself, i havent heard of the no kids one before, but i guess it goes with the concept of kids and pets arent always sanitary. The no people other than employess agian is for safety and sanitary reasons, sorry i am unfamilar with the laws in your area, it may be that you have to either put in a seperate kitchen add on or block of the kitchen from the rest of the house. Good Luck!

JoanieB Posted 2 May 2011 , 6:15pm
post #27 of 44

UPDATE: So here's was the representative that sponsored this bill said. So, looks like I can't become a real business, but I can do it "under the table" if you will:


The intention of this bill is to allow selling homemade products on a small scale, more specifically for fund raisers, special events, farmers markets, fairs, etc.; and baked in ones home. They must be labeled homemade, and the bill does not permit businesses to operate without health dept. permits.

You can get a permit for your home if you put in a certified kitchen.

If you bake occasionally and do not advertise as a business, you may be OK.

I suggest writing the AR Health Dept with a description of your intentions and asking for a written opinion of how the law applies to your specific situation.

Sincerely,

Representative
Lori Benedict

GinnyK Posted 2 May 2011 , 7:04pm
post #28 of 44

What the rest of the law says, beyond the quotes in your original post, is important. The quote appears to allow cottage cake operations. It really doesn't matter so much what the Legislature intended as it matters what the law says.

Never break the law, but there's always a lot of room for interpretation in these things. And government people always interpret them in a way that gives them the most control/power/clout.

If you get stuck and think you're right, call the Arkansas Gazette consumer reporter or one of your television stations' consumer reporters. Our television stations all have (in Omaha) "Let Channel 6 help you!!!" kinds of programs. "Channel 7 can stick up for you!!!" Etc.

This is often considered dirty pool by govt employees, but it's legal, it's American, it's very effective and it's kind of fun. (FYI, I've had experience.)

JoanieB Posted 2 May 2011 , 7:16pm
post #29 of 44

Ginny, that's what I was thinking. I'm so exhausted over this whole thing. I feel like I've wasted so much time and energy, not to mention money on filing stuff and now possibly having to spend more money to file dissolutions. Ugh! I know what you're talking about on the local news thing. I just don't want to cause myself any unwanted attention. If I could find someone that was actually on my side I might be more inclined but it seems everyone in any position to help is telling me no. I just don't understand if there really are all these so called restrictions then why are so many CCers so excited hearing the news of a cottage food law.

jason_kraft Posted 2 May 2011 , 7:33pm
post #30 of 44
Quote:
Originally Posted by JoanieB

I just don't understand if there really are all these so called restrictions then why are so many CCers so excited hearing the news of a cottage food law.



The restrictions are not from the cottage food law, they are from your municipal zoning board. You probably don't hear about this too often because either most towns are more liberal with their zoning (and recognize that a business with very little traffic run out of a residential area is not a big issue) or people simply neglect to check with their town zoning board.

If you escalate the issue to someone with real authority (versus someone who determined what to do by reading a checklist) it should be pretty easy to get a variance. Running to the media before you exhaust your options could backfire, depending on how the story is spun.

Based on the response from the bill sponsor, it sounds like they didn't really understand what the issue was. If you reply back and ask the state govt to issue guidance to towns on how to handle new cottage food businesses from a zoning perspective you might have better luck.

Quote by @%username% on %date%

%body%