Virginia Has No Home Kitchen Permit: the 18-Guest Bed-and-Breakfast Exemption Is the Only Route to Serving Meals

Start with the licence Virginia requires. Section 35.1-18 says no person shall own, establish, conduct, maintain, manage, or operate any hotel, restaurant, summer camp, or campground in the Commonwealth unless it is licensed, and the licence must be in the name of the owner or lessee and is neither assignable nor transferable. The State Health Commissioner issues it under § 35.1-20 only after an inspection finds compliance. The definition that catches home cooking is in § 35.1-1: a "restaurant" is any place where food is prepared for service to the public on or off the premises, or any place where food is served, and it also reaches any place or operation that prepares or stores food for distribution for service to the public, including catering, push carts and hotdog stands. A person selling dinners from a kitchen at home is squarely inside that definition.

The door that definition opens is then closed by regulation. 12VAC5-421-2990, adopted by the Board of Health under §§ 35.1-11 and 35.1-14 and effective in its current form since 2016, provides that a private home, a room used as living or sleeping quarters, or an area directly opening into a room used as living or sleeping quarters shall not be used for conducting food establishment operations. There is no permit application, no plan review under 12VAC5-421-3600 and no variance category that turns an ordinary house kitchen into a licensable restaurant. That is the structural proof, rather than an argument from silence, that Virginia has nothing resembling California’s MEHKO permit or Ohio’s meal-count exemption for an individual cook.

The route that does exist is tied to lodging. Section 35.1-25(A)(8) exempts a bed-and-breakfast operation that prepares food for and offers food to guests, regardless of the time the food is prepared and offered, on four conditions: the premises is a home that is owner occupied or owner-agent occupied; food is prepared for and offered to transient guests of the bed and breakfast only; the number of guests served does not exceed 18 on any single day; and those guests are informed, in a manner established by the Board in regulations, that the food is prepared in a kitchen that is not licensed as a restaurant and is not subject to regulations governing restaurants. The threshold for being a bed-and-breakfast operation at all comes from § 35.1-1: either two or more rental accommodations for transient guests plus food service to a maximum of 18 transient guests on any single day for five or more days in a calendar year, or at least one rental accommodation plus that same food service for 30 or more days in a calendar year. You have to be renting rooms. A cook who wants to sell meals to people who are not staying the night cannot reach this exemption.

A bed-and-breakfast that serves more than 18 guests on a day, or that opens its dining room to the public rather than to its own transient guests, falls back inside Title 35.1 and must hold a restaurant licence and comply with the Food Regulations. The number 18 does double duty there as well: 12VAC5-421-2830(A) exempts floor and wall junctures in bed and breakfast operations serving 18 or fewer guests from the coving requirement imposed on other food establishments, and 12VAC5-421-3310 lets pets remain in a bed and breakfast common dining area outside meal times where partitioning, utensil storage and cleaning conditions are met.

Three further exemptions in § 35.1-25 let home-cooked food reach the public without any licence. Subdivision A 1 exempts boardinghouses that do not accommodate transients, which is the long-term-lodger mirror image of the bed-and-breakfast rule. Subdivision A 3 exempts churches, fraternal or school organizations, organizations exempt under § 501(c)(3), volunteer fire departments and volunteer emergency medical services agencies that hold or participate in occasional dinners, bazaars and other fundraisers of one or two days’ duration at which food prepared in the homes of members is offered for sale to the public; the same subdivision adds that a licensed restaurant donating or selling food to those groups needs no additional permit and pays no additional permit application fee for the event. Subdivision A 5 exempts churches serving meals prepared in members’ homes to their members or invited guests. Subdivision A 9 covers home-based care settings, exempting family day homes as defined in § 22.1-289.02 and small group homes, adult day centers and recovery residences that provide custodial care to 12 or fewer adults or children in a home.

If the plan is to sell food rather than serve meals, the file moves to a different agency. Subsection C of § 3.2-5100 draws the boundary: a permit from the Commissioner of Agriculture and Consumer Services stands in for any other licence, permit or inspection for the sale, preparation or handling of food unless the operation is a restaurant as defined in Title 35.1, as jointly determined by the State Health Commissioner and the Commissioner of Agriculture. Packaged shelf-stable goods made at home therefore run through the VDACS cottage food exemption at § 3.2-5130(C)(3), while anything resembling meal service runs through Title 35.1 and meets 12VAC5-421-2990. Localities have narrow room to add to this: § 35.1-9 makes Title 35.1 and the Board’s regulations supersede local ordinances on restaurants, except that a locality may adopt food ordinances equivalent to or more stringent than state law.

1-7. 1 guilty of a Class 3 misdemeanor unless a different penalty is specified, and states that each day of violation constitutes a separate offense. A Class 3 misdemeanor carries a fine of up to $500 under Va. 2-11(c), so a home meal operation running for a month is exposed to a separate charge for every day it served. Subsection B lets the Board or the Commissioner go to court for an injunction, mandamus or other appropriate remedy compelling compliance, and subsection C then allows a civil penalty in the court’s discretion of up to $10,000 for each violation of that order, again with each day a separate offense. 1-25(A)(8) exemption from the moment the condition fails and is exposed on the same terms.