Nebraska Home Kitchens: Ten Paying Guests, No Permit Needed

Nebraska never built a permit for this. The permit types the Department of Agriculture may issue are listed by name in the fee schedule at § 81-2,270(4)(b), and the whole list is Limited Retail Food Establishment, Itinerant Food Vendor, Limited Food Service Establishment, Mobile Food Unit, Pushcart, Vending Machine Operations, Food Processing Plant, Salvage Operation, Commissary and All Other Food Establishment. There is no home kitchen category and no home kitchen fee. What Nebraska did instead was work on the definition. Section 81-2,270(1) says no person shall operate a food establishment without a valid permit, and § 81-2,245.01 then defines food establishment as an operation that stores, prepares, packages, serves, sells, vends or otherwise provides food for human consumption, followed by twelve things the term does not include. A home meal operation that fits one of those twelve is not an unpermitted food establishment; it is not a food establishment at all, so no permit, plan review, inspection or fee attaches to it.

The headcount route is subdivision (5). It excludes "a private home where food is prepared or served for personal use, a small day care in the home, or a hunting lodge, guest ranch, or other operation where no more than ten paying guests eat meals in the home." Three things about that wording control how far it goes. The words "other operation" open the exclusion past hunting lodges and guest ranches to any comparable paying arrangement, which is what makes it Nebraska's functional answer to the microenterprise home kitchen permits other states created. The ceiling is ten paying guests, and unlike a cottage food scheme there is no restriction on what may be cooked, so hot meals containing meat, poultry, dairy and eggs are all within it. And the meals must be eaten "in the home," so this exclusion supports a table in the residence and does not support takeout, delivery, catering off site or a stall at an event.

The lodging route is blunter still. Section 81-2,292 provides in a single sentence that the Nebraska Pure Food Act shall not apply to bed and breakfast establishments, and § 81-2,242 defines a bed and breakfast establishment as any place of lodging that provides rented rooms to ten or fewer people, that is the personal residence of the owner, that is occupied by the owner at the time of rental, and in which the only meal served to renters is breakfast. All four elements have to hold. Serving guests dinner as well as breakfast breaks the definition and pushes the operation back under the act, where it would then have to rely on the ten-paying-guest exclusion in § 81-2,245.01(5) or obtain a permit. The exemption is also the whole act, not merely the permit section, so adulteration, labeling and inspection provisions in §§ 81-2,239 to 81-2,292 do not reach a qualifying bed and breakfast.

Two further home exclusions sit alongside these and are commonly confused with them. Subdivision (6) covers a private home or other area where food that is not a time or temperature control for safety food is prepared for sale or service at a religious, charitable or fraternal organization's bake sale or similar function. Subdivision (8) covers a private home or other area where food is prepared for distribution at a fundraising event for a charitable purpose, but only if the consumer is told by a clearly visible placard at the serving location that the food was prepared in a kitchen not subject to regulation and inspection by the regulatory authority, and it expressly does not shelter a caterer or other establishment that is paid to provide food for the event. Neither of these is a business route; both are event routes.

What none of this covers is selling prepared meals to the public for pickup or delivery. That is the domain of subdivision (7) and § 81-2,280, Nebraska's registered home food producer scheme, which bars whole categories of ingredient and carries its own training and registration duties. If a Nebraska home cook wants paying customers to eat elsewhere, subdivision (5) is unavailable to them and the producer rules under § 81-2,280 govern instead.

One practical point on who is asking the questions. "Regulatory authority" under § 81-2,252 means the Department of Agriculture or a political subdivision or state agency under contract with the department to perform regulatory functions, so in the parts of Nebraska where a city or county health department holds that contract, it is the local inspector who applies the state definitions. The definitions themselves do not change from county to county: § 81-2,276 puts responsibility for regulating food establishments on the department in the manner set out in the act, and a local zoning or home occupation ordinance is a separate question from whether a permit is required under the Pure Food Act.

The Nebraska Pure Food Act, defined by § 81-2,239 as sections 81-2,239 to 81-2,292 plus the Food Code and Current Good Manufacturing Practice adopted by reference, is enforced criminally. Section 81-2,290(1) makes any person violating a provision of the act, its rules and regulations, or a final order of the director guilty of a Class IV misdemeanor notwithstanding any other remedy at law, and § 28-106 sets that class at no imprisonment and a fine of up to five hundred dollars. Section 81-2,290(2) puts an affirmative duty on the county attorney of the county where the violation occurs or is about to occur to institute proceedings once the department notifies them.

Section 81-2,275 separately makes it unlawful to operate a food establishment in any manner not in conformity with the act or to interfere with the department's duties or a final order of the director, and § 81-2,287 lets the regulatory authority issue stop-sale, stop-use and removal orders, while § 81-2,289 gives the department and the county attorney a route to restraining orders and injunctions. A home cook who exceeds ten paying guests, or who serves meals for consumption away from the home, loses the exclusion and is operating an unpermitted food establishment: § 81-2,270(2) then adds a sixty dollar fee for operating without a valid permit on top of the initial and annual fees before a permit can issue.