Oregon Home Kitchen Meals: No MEHKO Permit, and One Closed Exemption List

Start with the definition, because it is the reason Oregon has no informal home-meal channel. ORS 624.010(9) defines "restaurant" as an establishment where food or drink is prepared for consumption by the public, or where the public obtains food or drink so prepared in form or quantity consumable then and there whether or not consumed on the premises, or that prepares food or drink in consumable form for service outside the premises where prepared. Nothing in that definition turns on the type of building, the number of covers, or whether the cook lives there. ORS 624.010(10) then removes only five things from the term: a railroad dining car, a bed and breakfast facility, and the intermittent, seasonal and single-event temporary restaurants defined in subsections (4), (11) and (12). A private home is not among them.

ORS 624.020(1) attaches the licence duty: a person may not operate a restaurant or bed and breakfast facility without a licence from the Oregon Health Authority. Under ORS 624.020(2) the application is made on the authority’s form, the fee is set by ORS 624.490, and the licence expires annually on December 31 or on a date fixed by rule. ORS 624.020(5) requires evidence of the licence to be posted in public view at the customary entrance, and ORS 624.020(6) makes it non-transferable with no refund of an unused portion. ORS 624.490(1)(c)(A) puts the base fee for the smallest restaurant category, 0 to 15 seats, at $530, with $600 for 16 to 50 seats, $700 for 51 to 150 and $770 above that, and ORS 624.490(2) adds a $100 reinstatement fee for an expired licence that grows by a further $100 each month after the 31st day.

The absence is provable from the structure of ORS 624.038 rather than from silence. That section lists everything not subject to the restaurant requirements, and there are four items. Subsection (1) covers an establishment where food is prepared and served by a fraternal, social or religious organization only to its own members and guests. Subsection (2) covers an approved school lunchroom operating under the direction of the lunchroom supervisor. Subsection (3) covers a food product promotion offering only samples, and it is drafted tightly enough to make the point for the whole section: "a sample may not include a meal, an individual hot dish or a whole sandwich." Subsection (4) is the only entry that mentions a home at all, and it exempts a private residence, including the grounds and facilities held out for the use of the occupants generally, only where a temporary sales license has been issued under ORS 471.190 for a period not exceeding one day. ORS 471.190 is the Oregon Liquor and Cannabis Commission temporary sales licence, so the single Oregon home-kitchen exemption is an alcohol-permit event day, not a food programme.

The informal food channels Oregon does license are all tied to events rather than to a dwelling. ORS 624.010(4) defines an intermittent temporary restaurant as one operating at a specific location in connection with multiple events arranged by at least two different oversight organizations; ORS 624.010(11) defines a seasonal temporary restaurant for multiple events arranged by the same oversight organization; and ORS 624.010(12) defines a single-event temporary restaurant. ORS 624.490(1)(d) and (e) set the fee for the intermittent and seasonal categories at $75, and ORS 624.490(1)(f) sets a single-event licence at $50 for a one-day event and $75 for two days or longer. A cook who wants to sell prepared meals in Oregon without a permanent commercial kitchen is being pointed at those licences, not at a home kitchen scheme.

There is a real home-kitchen licence in Oregon, but it sits on the agriculture side of the line and does not reach meals. ORS 616.706(1) requires a licence before operating a food establishment, defined in ORS 616.695(4) to include any room, building, structure or place used for storing, preparing, compounding, manufacturing, processing, freezing, packaging, distributing, handling, salvaging or displaying food, and ORS 616.706(6)(a) creates a distinct licence fee category for a food establishment that is part of a domestic kitchen. The State Department of Agriculture issues that as a domestic kitchen bakery licence or a domestic kitchen food processor licence, and its Food Safety Program guidance states that anyone who wants to sell food made in a home kitchen for personal profit must meet special requirements and obtain a domestic kitchen licence, that a home kitchen on a well or septic system carries additional requirements, and that the licence does not cover low-acid canned food processing, milk processing for fluid milk or milk products, animal food processing, or catering activities. ORS 616.706(8) also caps fee rulemaking, forbidding a new licence fee more than three percent above the previous year for an establishment of the same type and sales volume and allowing the schedule to change no more than once a year.

The two agencies do not overlap, which forces a home cook to choose a lane. ORS 616.711(3)(a) provides that ORS 616.695 to 616.755 do not apply to restaurants, bed and breakfast facilities, intermittent, seasonal and single-event temporary restaurants, commissaries, vending machines and mobile food and beverage units licensed under ORS 624.010 to 624.121 or ORS 624.310 to 624.430, and ORS 624.530 requires the Director of the Oregon Health Authority and the Director of Agriculture jointly to adopt rules and interagency agreements ensuring that only one of the agencies inspects a given facility. Packaged product made at home is an agriculture matter; meals served to the public are a health authority matter.

In practice the health authority is not who a home cook would deal with. ORS 624.510(1) directs the Director of the Oregon Health Authority to enter an intergovernmental agreement with each local public health authority delegating administration and enforcement of ORS 624.010 to 624.121, so a county health department issues the restaurant licence, inspects, and enforces. ORS 624.510(2) requires local fees adequate to cover local administration and state oversight, and where a local fee runs more than 20 percent above or below the state figure the Oregon Health Authority must analyse the local fee process and may order the fee reduced to a level its analysis supports. That is why the licence a Portland or Bend home cook is quoted may not match the ORS 624.490 number exactly.

Operating a home kitchen as an unlicensed restaurant is a crime in Oregon, not a fee matter. ORS 624.990(1) makes violation of any provision of ORS 624.010 to 624.121, or of any Oregon Health Authority rule adopted under those sections, a Class C misdemeanor. ORS 624.992(1) adds a civil penalty in addition to any other penalty, and it names ORS 624.020(1), the licence requirement, as one of the provisions it reaches; ORS 624.992(2) requires the authority to adopt objective criteria for the amount by rule after a public hearing, and ORS 624.992(3) imposes the penalty in the manner provided by ORS 183.745. ORS 624.992(4) limits a delegated local public health authority’s civil penalty power to imminent and present dangers to public health and to operation without a licence, which is precisely the unlicensed home kitchen case.

Closure powers are immediate. ORS 624.073(1) lets the director revoke, suspend or refuse a licence where a critical violation constituting a potential danger to public health continues after a reasonable correction period of not longer than 14 days. ORS 624.073(2) allows an order of immediate correction, an approved alternative procedure, or closure by written notice where the critical violation is an imminent or present danger, and it provides that the closure order has the effect of an immediate revocation of the operator’s licence. ORS 624.096 gives the same summary closure power over temporary restaurants. In both cases the director must, if requested, provide a prompt hearing after the closure in accordance with ORS chapter 183, and ORS 624.073(2) requires the inspection form itself to display notice that ORS chapter 183 appeal procedures are available.

On the agriculture side the exposure is heavier. ORS 616.713(2) lets the State Department of Agriculture order the closure of a food establishment where departmental authorization is required by law and absent. ORS 616.992 makes violation of any provision of ORS chapter 616 or its rules a Class B misdemeanor for a first offense and a Class A misdemeanor for a second or subsequent offense, and ORS 616.997(1) and (2) allow a civil penalty of up to $10,000 for each violation, with each day of continued violation counted separately unless the department finds another period more appropriate. A request for a hearing on an ORS 616.997 penalty must reach the department within 10 days of the notice being mailed or served, which is shorter than the ordinary ORS chapter 183 window.