South Dakota Home Kitchens: No MEHKO Permit, but a Registered Bed and Breakfast May Serve Meals Unlicensed

The licensing hook is SDCL 34-18-9: it is a Class 2 misdemeanor to maintain, conduct or operate a lodging establishment, campground or food service establishment in South Dakota unless a valid Department of Health license is in the owner's possession and posted in a conspicuous place. The reach of that duty comes from the definition in SDCL 34-18-1(5), which counts as a food service establishment any fixed restaurant, catering kitchen, delicatessen, bakery, grocery store, boardinghouse or similar place in which food or drink is prepared for sale or for service to the public on the premises or elsewhere, with or without charge. A home kitchen cooking dinners to order for strangers falls inside that, and the words boardinghouse and with or without charge close the two escape hatches people usually reach for.

The exemption that does exist is narrow, specific and worth reading closely. SDCL 34-18-9.1(1) defines a bed and breakfast establishment as any building or buildings run by an operator, used to provide accommodations for a charge to the public, with at most five rental units for up to an average of ten guests per night, and in which family style meals are provided. SDCL 34-18-9.1(2) then defines a family style meal as any meal ordered by persons staying at the establishment which is served from common food service containers, as long as any food not consumed by those persons is not reused. SDCL 34-18-9.1(3) requires the operator, meaning the owner or the owner's agent, to reside in the establishment or on contiguous property. Put together, that is an owner-occupied home, five rooms at most, an average of ten guests a night at most, meals from shared serving dishes, and no reuse of leftovers.

SDCL 34-18-9.2 then removes that establishment from licensure entirely: no bed and breakfast establishment as defined in 34-18-9.1 is subject to be licensed under the provisions of the chapter. That is a full exemption, not a reduced fee. For comparison, a licensed food service establishment pays a one hundred dollar initial fee under SDCL 34-18-10.4 plus an annual fee under SDCL 34-18-11 that runs from ninety dollars with no seating to two hundred twenty-five dollars above one hundred seats.

What replaces the license is registration. SDCL 34-18-9.3 requires any bed and breakfast operating in the state to register with the Department of Health and to pay a one-time thirty-eight dollar registration fee before it may operate. Any change in ownership or location requires a new registration on the department's form with another thirty-eight dollar fee, and the department may investigate any complaint made against a bed and breakfast establishment. SDCL 34-18-9.4 adds two operating duties enforceable as a Class 2 misdemeanor: maintain a guest list, and place a smoke detector in each sleeping room with at least one per floor.

Grow past those numbers and the exemption stops. A house with six to ten rental units, or averaging more than ten but not more than twenty guests a night, becomes a specialty resort under SDCL 34-18-1(13), which is a licensed lodging establishment at a forty-five dollar annual fee under SDCL 34-18-11(6) and must meet the fire safety standards of SDCL 34-18-22.1: unlocked primary exits marked with illuminated exit signs, a smoke detector in each sleeping room tested twice a year, an operable egress window in each sleeping room, and portable fire extinguishers of at least a 2-A rating on each floor, inspected and tagged annually.

This is a separate scheme from South Dakota's homemade food law. SDCL 34-18-35 through 34-18-38 exempt non-temperature-controlled food, home-processed canned goods and baked goods prepared at a residence, but SDCL 34-18-38(2) requires those sales to happen in the seller's physical presence at the residence, a farmer's market, a roadside stand or another temporary sale venue. That is shelf-stable product sold face to face, not a meal cooked to order and eaten on the premises.

Operating a home kitchen as an unlicensed food service establishment is a Class 2 misdemeanor under SDCL 34-18-9, punishable under SDCL 22-6-2(2) by up to thirty days in a county jail, five hundred dollars, or both. SDCL 34-18-32 makes any violation of the chapter or its rules a Class 2 misdemeanor as well and treats each day of operation after a notice of closure as a distinct and separate offense. 4. Enforcement sits with the Department of Health, which SDCL 34-18-1(3) and (12) name as the department and secretary for this chapter, not with the Department of Agriculture and Natural Resources.

3, which requires the owner's consent or a court order absent an emergency, is written for establishments exempt under SDCL 34-18-17, 34-18-18 and 34-18-20 rather than for bed and breakfasts. 2 authorizes a closure order and injunctive relief for operating without one.