New Hampshire Home Meals: Four Days a Month or a B&B Licence

Start with the opening words of RSA 143-A:5, because they carry a reservation that survives every exemption in the list: the establishments and events named are exempt from departmental licensure and inspection under the chapter, except that the department may inspect when it has reason to suspect an imminent health hazard as defined in RSA 143-A:3, IV-b. Being exempt in New Hampshire means being unlicensed, not being unreachable.

Paragraphs I and II of RSA 143-A:5 explain why the New Hampshire answer has a municipal layer that most states do not. Food service establishments and retail food stores licensed by city health officers under RSA 47:17 are exempt from state licensure, as are those licensed by town health officers under RSA 147:1. RSA 147:1, II lets town health officers make regulations on the sanitary and health conditions for issuing a licence to restaurants or other food serving establishments operating within the town, subject to the approval of the commissioner of Health and Human Services, and RSA 47:17, XV lets city councils license and regulate common victualers. Paragraph III then exempts temporary food service establishments, occasional food service establishments and occasional food service events only where they are not under the jurisdiction of city or town health officers under those two sections. So the first question a New Hampshire home cook has to answer is not a state question at all: it is whether the town or city has taken up food licensing.

The occasional route is the closest thing New Hampshire has to a meal-count exemption. RSA 143-A:3, V defines an occasional food service establishment as any food service establishment where food is provided for the public and served on premises or taken away and consumed off premises, whether or not there is a charge for such food, no more than 4 days during a 28-day period, and it adds that any part of a day counts as one full day. That last sentence is the trap: a two-hour Saturday supper club burns a whole day, so four events in four weeks is the ceiling regardless of how brief they are. RSA 143-A:3, V-a separately defines occasional food service events as events not regularly scheduled where food is provided to participants, naming extracurricular school events, non-profit sporting events and periodic events sponsored by religious or nonprofit organisations. Note the difference: V is measured in days, V-a in the irregularity of the event.

The licensed route is the bed and breakfast, and it is genuinely a home kitchen licence. He-P 2301.01(d) defines a bed and breakfast as a type of food service establishment that is a transient lodging facility, which is the owner's or innkeeper's personal residence, is occupied by the owner or innkeeper at the time of rental to an in-house guest, and in which breakfast is the only meal served to in-house guests, with an exception for service of a snack. Every clause narrows it: the operator must live there, must be living there when the guest stays, and may serve only breakfast. RSA 143-A:9, IX is the statutory authority, directing the commissioner to adopt rules on requirements for bed and breakfast facilities.

What makes the bed and breakfast licence workable in an ordinary house is He-P 2308.02, which lists the Food Code requirements a bed and breakfast does not have to meet. Commercial equipment is not required. The kitchen needs either a 2-compartment sink or a residential model dishmachine plus a one-compartment sink. A food preparation sink need not have an indirect wasteline, and a kitchen sink with a spray hose need not have a backflow device. Coved base at the floor and wall juncture is not required. Only bathrooms opening directly into the kitchen or into a hallway leading into it need self-closing doors and mechanical ventilation. The kitchen need not be separated from a living or sleeping area by complete partitioning or solid self-closing doors. Laundry facilities are allowed in the kitchen, provided they are not used while food for the business is being processed, prepared, served or packaged. He-P 2308.01 also excuses a bed and breakfast applicant from the plan review application and the wastewater items other food establishments must file. He-P 2308.03 keeps one hard requirement: sanitization under Food Code 4-703.11, done in the second compartment where a 2-compartment sink is used.

A bed and breakfast is licence Class E, Category E-1 in He-P 2304, and He-P 2304.05(a)(5) sets the annual fee at $175. He-P 2303.02(a)(6) also exempts a Category E-1 bed and breakfast from the certified food protection manager requirement that applies to most food establishments.

What New Hampshire does not have is a permit for cooking dinners to order in a private home for the public on a routine basis, the model California and a handful of other states adopted. The homestead food scheme in RSA 143-A:12 cannot fill that gap, because it is confined by RSA 143-A:12, I(a) to homestead food products and excludes potentially hazardous food by definition, which removes hot meals. Anything else run out of a home kitchen for the public more than four days in a 28-day period is a food service establishment under RSA 143-A:3, IV and needs a licence under RSA 143-A:4, from the department or from the local health officer.

RSA 143-A:4, I makes it unlawful for any person not exempted under RSA 143-A:5 to operate a food service establishment or retail food store in New Hampshire without a food service licence issued by the commissioner, and RSA 143-A:4, II requires the licence to be displayed conspicuously in the establishment and makes it non-transferable. Penalties escalate by count under RSA 143-A:10: a first offence, or a failure to comply with the lawful orders and requirements of the commissioner, is a violation; a second offence is a misdemeanour; a third is a misdemeanour if committed by a natural person and a felony if committed by any other person.

RSA 143-A:10-a allows administrative fines from a schedule adopted by rule under RSA 143-A:9, IV-b, with notice and hearing procedures under RSA 143-A:9, IV-c, and RSA 143-A:11 allows injunctive relief. Where the town has taken up licensing, the sharper power sits locally: RSA 147:1, II(a) lets a local health officer close a restaurant or other food serving establishment found in violation of the adopted sanitary and health code without a hearing for 10 days or until the violation is corrected and the sanitary condition approved, and RSA 147:1, II(b) allows suspension of the licence after notice and hearing if the violation is not corrected in that period. RSA 147:1, III makes wilful violation of a local health regulation a violation offence.