Should a single mom be facing jail time for selling homemade food?
California investigators recently completed an undercover sting operation into a community group using Facebook as a platform to exchange and sell homemade food items.
This is yet another example of overcriminalization under the watch of California Gov. Jerry Brown, which also limits the entrepreneurial potential of the state.
According to The Washington Post, investigators tracked food sales through the group for over a year before carrying out the sting that turned Mariza Ruelas, a single mother of six, from a home cook into a culinary mafia kingpin.
Ruelas joined the 209 Food Spot group—designed for residents of the 209 area code in Stockton, California—two years ago when she was in need of a cake for her daughter’s quinceañera (the Hispanic coming-of-age celebration on a young woman’s 15th birthday).
The experience of buying a homemade specialty item inspired Ruelas to start offering up her own dishes through the group about once per month.
Oftentimes, Ruelas would exchange her homemade meals for household items and children’s clothes that her family needed, while turning a very modest profit on direct sales.
However, Ruelas’ hobby came under scrutiny when an undercover investigator contacted Ruelas to purchase her specialty ceviche dish. Instead of simply saying thank you for the homemade ceviche—which was assumedly delicious—the investigator turned Ruelas’ case, and several others, over to the San Joaquin County district attorney for prosecution.
Ruelas now faces four misdemeanor counts for violating the California Retail Food Code by selling food without a license. Under Section 114395 of the code, each offense is a misdemeanor punishable by a fine of up to $1,000 and up to six months’ imprisonment.
In support of levying charges, the prosecutor points to the legitimate danger posed by food-borne illnesses and the fact that “[p]eople like Ruelas also undercut restaurant owners who obtain the proper permits.”
While consumers do assume greater risk when enjoying food made in uninspected facilities—such as a neighbor’s kitchen—licensing requirements often limit economic exchange and harm entrepreneurs. Further, restaurants that do have the proper licenses are routinely shut down for violating health codes. Licensure is no guarantee of food safety.
Under the California Homemade Food Act, home cooks must obtain a government license and complete a California Food Handler certification course in order to sell food prepared in a private kitchen. Home cooks are required to renew their registration annually and submit a self-certification checklist for approval by the local environmental health agency before being issued a permit to operate.
In San Joaquin County, the lowest-grade Class A license costs $133 annually. Those who obtain a Class A license may engage in “direct sales” inside of the state of California where the food products are hand-delivered to the buyer. Operators are not allowed to ship food via third-party delivery services of any kind.
Additionally, homemade products must also meet stringent labeling requirements: the operator’s name, city, ZIP code, permit number, product ingredients, weight, and the words “Made in a Home Kitchen” or “Repackaged in a Home Kitchen” must appear on the label of all food products sold.
Even if someone complies with all licensing and labeling requirements, California law only allows a cottage food operator to sell items listed on the Approved Food Products List.
The approved list contains just 31 food items that do not require refrigeration. Even if Ruelas did pay the $133 fee to obtain a license and met the other administrative requirements, she still would not be allowed to sell her ceviche out of her own kitchen—the same kitchen where, presumably, she feeds herself and her children just fine, with no license of any kind.
Furthermore, Ruelas said that she “never tried to be in business,” though if she did turn her hobby into a business, California would place a cap on her earning potential. A cottage food operator can only make up to $50,000 in gross sales per year before again running afoul of California’s regulatory scheme.
As demand for the sharing economy grows, regulations that “overcriminalize innovation” will only limit opportunity. People already share their cars and their homes (when not stifled by overregulation), so why not their food? Innovators are ready to act if government will only step out of their way.
Ruelas violated the letter of the law by selling food prepared in her home kitchen without a license. But is her home cooking so heinous that it justifies a yearlong surveillance program of a community Facebook group? Is it necessary to deploy undercover agents to catch chefs in the act of delivering delicacies? Ruelas deemed the operation a “waste of time and resources and taxpayers’ money.”
Protecting the public from unsanitary food is one thing, but requiring a single mom with culinary talents to face jail time for sharing her talents with patrons from her community is another thing entirely.
At least six other members of Ruelas’ community group charged in the sting agreed to plea deals, but Ruelas refused a deal that would have required her to serve three years of probation, pay a $235 fine, and perform 80 hours of community service.
According to the Los Angeles Times, Ruelas said she is “willing to pay a fine,” but does not want a criminal record. As noted by John Malcolm, director of The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, there are a multitude of collateral consequences that accompany a criminal conviction, which make it more difficult to secure employment, obtain a license to enter a variety of professional fields, or gain access to capital.
There is no need to brand Ruelas as a criminal when a civil fine provides a more than equitable remedy. This prosecution illustrates the problem of overcriminalization, which subjects every single mistake to criminal penalties and attempts to compel compliance with regulatory objectives through the criminal law. Instead, criminal regulations ought to leave alone unlicensed lemonade stands and home cooks before investigators conduct their next undercover sting operation at a Girl Scout bake sale.