Alabama Home Kitchen Meals: No MEHKO Permit, Three Exclusions and a Bed and Breakfast Carve-Out

Start with the permit, because that is the default. Ala. Code § 22-20-5(a) directs the State Committee on Public Health to adopt rules for the construction, maintenance and operation of all establishments where food or beverages intended for sale for human consumption are made, prepared, processed, displayed unpackaged or served, and § 22-20-5(c) makes it unlawful to operate such an establishment without a valid permit from the health officer once the State Health Officer has declared the rules in effect in that county or municipality. It also bars the probate judge and the city clerk from issuing a privilege licence to an operator who lacks the health permit, which is how the two licences are wired together in Alabama. The implementing chapter, Ala. Admin. Code ch. 420-3-22, restates that at r. 420-3-22-.08(2): it is unlawful for any person to operate a food establishment in Alabama unless that person holds a valid permit issued by the Health Officer, permits are not transferable as to person, establishment or location, the permit must be posted conspicuously inside the establishment, it remains the property of the Health Department, and it is revocable for violation of the rules.

A home kitchen selling cooked meals falls inside that by definition. Rule 420-3-22-.01(4)(a)16 defines a food service establishment as any place, vehicle or vessel where food for individual portion service is prepared, stored, held, transported, served or dispensed, regardless of whether consumption is on or off the premises, and expressly sweeps in delicatessen type operations, all schools and all child day care centers. Cooking to order for paying customers is individual portion service, so the question is never whether a permit exists but whether one of the exclusions reaches you.

The first exclusion is narrow in three directions at once. Rule 420-3-22-.01(4)(a)14(i) removes a kitchen in a private home only if the food is not time or temperature controlled for safety, only if it is prepared for sale or service at a function such as a charitable, religious, civic or not-for-profit organization's food sale or at a state sanctioned farmer's market, and only if the consumer is told by a clearly visible label, tag or placard at the point of sale or service that the food was prepared in a kitchen not inspected by a regulatory agency. Hot meals are out on the first condition, a private commercial venture is out on the second, and an unlabelled table is out on the third. The rule then adds that the exclusion never permits the sale of low acid foods in a hermetically sealed container, home-canned vegetables being the example given, unless prepared in a permitted establishment.

The second exclusion, r. 420-3-22-.01(4)(a)14(ii), covers private gatherings with a limited and identifiable membership where no sale of food takes place, and it defines a sale broadly to close the obvious workaround: a sale is any situation in which there is a charge for profit for the food, or in which a membership fee is required for entry or participation. A supper club that charges a membership fee is selling food for the purpose of this rule.

The third exclusion, r. 420-3-22-.01(4)(a)14(iii), is the cottage food production operation, which tracks Ala. Code § 22-20-5.1 and reaches only shelf-stable goods sold directly to consumers.

The bed and breakfast carve-out is the one place where Alabama lets a home kitchen cook a meal for a paying stranger without a health permit. Rule 420-3-22-.01(4)(a)1 defines a bed and breakfast as a private owner-occupied residence providing accommodations for a charge to the public with no more than ten guest rooms for rent, states that breakfast only may be provided to the guests, and exempts such establishments from both the hotel rules at ch. 420-3-11 and the food service sanitation rules at ch. 420-3-22. Every element is load bearing: owner occupied, ten rooms or fewer, guests only, and breakfast only. Serving dinner, or opening the dining room to people who are not staying the night, takes the operation back under the permit rule.

One county has its own statutory scheme worth knowing. Ala. Code § 45-49-171.23 lets an intermittent food service establishment in Mobile County, meaning an entity with a physical address in the county that does not prepare or serve food in its regular line of business but does so on an intermittent basis for not more than three consecutive days per week, apply free of charge on the Mobile County Health Department web page at least five business days before a temporary exempt event. The application must give the event site, the name of each food vendor and a general description of the foods to be sold; the operator must hold a Mobile County food handlers card and provide a handwashing facility and a garbage and waste plan; and no more than four exemptions may be granted in a calendar year at a single specified location for a recurring event. Section 45-49-171.23(c) goes further for a tax exempt church conducting intermittent food sales for fundraisers on its own premises, which is exempt from the Mobile County Health Department's regulatory requirements altogether.

Operating a home kitchen as an unpermitted food establishment is unlawful under both instruments. Ala. Admin. Code r. 08(2) makes it unlawful for any person to operate a food establishment in Alabama without a valid permit issued by the Health Officer, and Ala. Code § 22-20-5(c) authorises the health officer to suspend or revoke a permit, after the expiration of a reasonable time named in an official written notice, for flagrant or continuous violation of the rules. Section 22-20-5(d) lets the health officer go to circuit court to enjoin the operation of a governed establishment where no more reasonable course will protect the public health, and § 22-20-5(e) authorises entry at any time for inspection and the scoring, grading and public posting of the result, making it unlawful for anyone but the health officer to remove a posted score, to deface or falsely advertise one, or to hinder the health officer in the performance of duty.

For an operator who wants to come into compliance rather than argue about it, r. 08(3) sets out the process: written application on the Health Officer's form giving each applicant's name and address and the location and type of establishment; inspection or file review before approval; and verification, where required, that the permit holder or designee holds a valid certification from an accredited program issued within the previous five years, that is 60 months, or completed an accredited program without certification within the previous twelve months from the date of application.

Permits expire when the state, county and municipal annual privilege licences expire or on a date designated by the Health Officer, and renewal is by written application within 150 days before expiry. Ala. Code § 22-20-5(b) preserves the power of county boards of health and of municipalities to adopt more stringent regulations or ordinances, so a city can be tougher than the state rule but not looser.