Government Regulators Target 11-year Old's Cupcake Business

This story http://www.bnd.com/2014/01/26/3021370/troy-11-year-old-turns-cupcakes.html about an industrious, entrapreunorial youngster caught the attention of the Madison County Health Department, inspiring the synaptic-challenged, bureaucratic buffoonery of nanny-state nincompoops to rear its empty head and threaten the child with a sundry of penalties if she does not procure proper permits, licenses, and pay corresponding fees. The story referencing the state-sponsored terrorist threats against a child of insufficient age, to understand legalese or comprehend the law, is here http://www.bnd.com/2014/01/27/3026205/stir-crazy-young-baker-needs-help.html

The story was encapsulated by this brilliant political cartoon, the artist-of-which, I must say, shares some of my DNA. Aside from the over-the-top bullying by the State, this is primarily a litmus test to see how far they can push us, in this case, tugging at our heart strings with an 11 year old girl who has beckoned the ire of the State.

Madison County Cupcake Regulatory Dipshits

A perusal of the county website,http://www.madisonchd.org/index.shtml, shows the chief administrator as:

Toni Corona, B.S., L.E.H.P.
Public Health Administrator
tmcorona@co.madison.il.us
(618) 296-6065

The Board of Health Members roster is here: http://www.madisonchd.org/board-of-health.shtml

Of course, the government does this all under the pretense that they are watching out for our safety; and such regulations are intended to prevent the spread of disease and injury from businesses who fail, or refuse, to implement prudent and reasonable precautions. This power, called the “police power” (which has nothing go do with police as we commonly refer to them) is regarded as in inherent power of the State to provide for the protection of the public health, safety, welfare, and morals. The police power is undefined, broad, and unlimited. It does not derive from any constitution. It’s powers are limited by the constitution, meaning it cannot cause you to be arrested or searched without constitutional limitations applying, but the scope of its legislation is so encompassing that it does need a constitution to bestow it. It is the inherent power of the State.

The purpose of this article is not to provide an in-depth analysis of the police power because first, the discussion on the validity of the State, sovereignty, natural rights, and consent, would need to be analysed. This article is a diatribe against a county regulatory board which has capriciously and zealously targeted a harmless 11 year-old girl with precocious baking abilities, and painting her as a threat to the public health in-need of governmental oversight in order to secure the confidence and soothe the minds of the fearful masses from contracting life-threatening pathogens or disease from the pre-pubescent, dough-flinging wench.

As with most bureaucratic buffoonery, the regulators will allege a violation, yet fail or refuse to cite which specific law is being broken. They will claim that you need a permit or license, or that you can’t do something, but never articulate the specifics supporting their claims. If we are to believe the Health Department’s claim, we need to find the law they refuse to cite. I found 3 possible laws/regulations which could possibly apply. The result of my research revealed the Cottage Food Preparation Act, which addressed ONLY food sold at farmer’s markets.

The first source would be the Madison County Zoning Ordinance – http://www.co.madison.il.us/planning/PDF/ZoningOrdinance.pdf

This would address the use of the home, as zoned, for baking.

The second source would be the Illinois Food Preparation Act – http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1584&ChapterID=35

And the third would be the Illinois Food Handling Regulation Enforcement Act. – http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1578&ChapterID=35

The most applicable and plausible regulation is the Food Handling Regulation Enforcement Act (410 ILCS 625/4), which allows for “Cottage food operation”.

If you want to understand legislation, there is no better resource than the House or Senate debates as to the intent and application of that Legislation. I researched what the County failed to define and found some very telling information. It is my contention that the law does NOT apply to Chloe, and others like her who are not corporate entities or otherwise dealing with hazardous foodstuffs being sold to the public.

My research and findings follow. In the mean-time, If I were Chloe, I would continue to do what I do and wait for the paper tiger to bare its fangs and let the chips fall where they may. I seriously doubt there would be any fines or penalties in her case.

Madison County Zoning Ordinance

http://www.co.madison.il.us/planning/PDF/ZoningOrdinance.pdf

PUBLIC HEALTH (410 ILCS 650/) Sanitary Food Preparation Act. ~ http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1584&ChapterID=35

PUBLIC HEALTH (410 ILCS 625/) Food Handling Regulation Enforcement Act. ~ http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1578&ChapterID=35

Cottage Food Preparation added by Public Act 097-0393 http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=097-0393&GA=97

SB0840 Enrolled  LRB097 04584 KTG 44623 b

Senate Transcripts

http://www.ilga.gov/search/LISGSApage.asp?target=SB0840&submit1=Go&scope=sentran97

5/3/2011 @ Page 47 This bill relates to food sold at Farmer’s Markets ~ http://www.ilga.gov/senate/transcripts/strans97/09700035.pdf

5/27/2011 @ Page 13 Voting on the Bill ~ http://www.ilga.gov/senate/transcripts/strans97/09700054.pdf

House Transcripts

5/23/2011 @ Page 34 through Page 43 Addresses food sold at Farmer’s Markets and discusses how home bakers are affected. THIS is the important discussion you want to read. In the discussion it states that the Amish are already allowed to sell bake goods, and the Bill does not affect them. On Page 37, it discusses specifically bake sales held by groups or churches and the determination is that it does not affect what they do, it just adds the definition of what a farmer’s market is. At the top of Page 38, Representative Dugan says, “We think… I think, Representative (speaking to Representative Eddy) they’re currently exempt under current law.” ~ http://www.ilga.gov/house/transcripts/htrans97/09700062.pdf

TEXT OF THE ILLINOIS COTTAGE FOOD PREPARATION PROVISION

(410 ILCS 625/4)
Sec. 4. Cottage food operation.
(a) For the purpose of this Section:
“Cottage food operation” means a person who produces or packages non-potentially hazardous food in a kitchen of that person’s primary domestic residence for direct sale by the owner or a family member, stored in the residence where the food is made.
“Farmers’ market” means a common facility or area where farmers gather to sell a variety of fresh fruits and vegetables and other locally produced farm and food products directly to consumers.
“Potentially hazardous food” means a food that is potentially hazardous according to the Federal Food and Drug Administration 2009 Food Code (FDA 2009 Food Code) or any subsequent amendments to the FDA 2009 Food Code. Potentially hazardous food (PHF) in general means a food that requires time and temperature control for safety (TCS) to limit pathogenic microorganism growth or toxin formation. In accordance with the FDA 2009 Food Code, potentially hazardous food does not include a food item that because of its pH or Aw value, or interaction of Aw and pH values, is designated as a non-PHF/non-TCS food in Table A or B of the FDA 2009 Food Code’s potentially hazardous food definition.
(b) Notwithstanding any other provision of law and except as provided in subsections (c) and (d) of this Section, neither the Department of Public Health nor the Department of Agriculture nor the health department of a unit of local government may regulate the service of food by a cottage food operation providing that all of the following conditions are met:
(1) The food is not a potentially hazardous baked
good, jam, jelly, preserve, fruit butter, dry herb, dry herb blend, or dry tea blend and is intended for end-use only. The following provisions shall apply:

(A) The following jams, jellies and preserves are
allowed: apple, apricot, grape, peach, plum, quince, orange, nectarine, tangerine, blackberry, raspberry, blueberry, boysenberry, cherry, cranberry, strawberry, red currants, or a combination of these fruits. Rhubarb, tomato, and pepper jellies or jams are not allowed. Any other jams, jellies, or preserves not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6.

(B) The following fruit butters are allowed:
apple, apricot, grape, peach, plum, quince, and prune. Pumpkin butter, banana butter, and pear butter are not allowed. Fruit butters not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6.

(C) Baked goods, such as, but not limited to,
breads, cookies, cakes, pies, and pastries are allowed. Only high-acid fruit pies that use the following fruits are allowed: apple, apricot, grape, peach, plum, quince, orange, nectarine, tangerine, blackberry, raspberry, blueberry, boysenberry, cherry, cranberry, strawberry, red currants or a combination of these fruits. Fruit pies not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6. The following are potentially hazardous and prohibited from production and sale by a cottage food operation: pumpkin pie, sweet potato pie, cheesecake, custard pies, creme pies, and pastries with potentially hazardous fillings or toppings.

(2) The food is to be sold at a farmers’ market.
(3) Gross receipts from the sale of food exempted
under this Section do not exceed $25,000 in a calendar year.

(4) The food packaging conforms to the labeling
requirements of the Illinois Food, Drug and Cosmetic Act and includes the following information on the label of each of its products:

(A) the name and address of the cottage food
operation;

(B) the common or usual name of the food product;
(C) all ingredients of the food product,
including any colors, artificial flavors, and preservatives, listed in descending order by predominance of weight shown with common or usual names;

(D) the following phrase: “This product was
produced in a home kitchen not subject to public health inspection that may also process common food allergens.”;

(E) the date the product was processed; and
(F) allergen labeling as specified in federal
labeling requirements.

(5) The name and residence of the person preparing
and selling products as a cottage food operation is registered with the health department of a unit of local government where the cottage food operation resides. No fees shall be charged for registration.

(6) The person preparing and selling products as a
cottage food operation has a Department of Public Health approved Food Service Sanitation Management Certificate.

(7) At the point of sale a placard is displayed in a
prominent location that states the following: “This product was produced in a home kitchen not subject to public health inspection that may also process common food allergens.”.

(c) Notwithstanding the provisions of subsection (b) of this Section, if the Department of Public Health or the health department of a unit of local government has received a consumer complaint or has reason to believe that an imminent health hazard exists or that a cottage food operation’s product has been found to be misbranded, adulterated, or not in compliance with the exception for cottage food operations pursuant to this Section, then it may invoke cessation of sales until it deems that the situation has been addressed to the satisfaction of the Department.
(d) Notwithstanding the provisions of subsection (b) of this Section, a State-certified local public health department may, upon providing a written statement to the Department of Public Health, regulate the service of food by a cottage food operation. The regulation by a State-certified local public health department may include all of the following requirements:
(1) That the cottage food operation (A) register with
the State-certified local public health department, which may include a reasonable fee set by the State-certified local public health department notwithstanding paragraph (5) of subsection (b) of this Section and (B) agree in writing at the time of registration to grant access to the State-certified local public health department to conduct an inspection of the cottage food operation’s primary domestic residence in the event of a consumer complaint or foodborne illness outbreak.

(2) That in the event of a consumer complaint or
foodborne illness outbreak the State-certified local public health department is allowed to (A) inspect the premises of the cottage food operation in question and (B) set a reasonable fee for that inspection.

(Source: P.A. 97-393, eff. 1-1-12.)

 

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5 thoughts on “Government Regulators Target 11-year Old's Cupcake Business

  1. Riverbender says:

    Did you read the cottage food act? It is specifically for food sold at farmer's markets, not to the public at large through a BUSINESS, which this girl was running. Also, try some more appropriate links like these below. From your youtube video, it is clear that you have no idea what local government workers do or who they are. You slap a "bureaucrat" lable on anyone from the Feds on down but truly don't know any of these people.

    The IL Food Service Sanitation Code, which all local health departments follow: http://www.ilga.gov/commission/jcar/admincode/077

    The Madison County Food Sanitation Ordinance: http://www.madisonchd.org/documents/FOODORDAmende

    • markmccoy says:

      Yes, I read the Cottage Food Act. Did you? It creates "Farmer's Markets" which then are regulated by virtue of that construct being a creature of the Legislature. Chloe is not a "business". It would serve you to understand legal definitions and the scope of legislation. You have nothing to substantiate your assertion that Chloe was a "business". You also fail to cite the specific provision of law which supports the Health Department's claims that she needs a separate kitchen. Did you even read the transcripts from the House Debates?
      When I use the word "bureaucrat" I am being diplomatic and civil. I could resort to more disparaging adjectives. I do not have to know people who serve government in order to refer to them as bureaucrats, because bureaucrats are those which surrender common sense and reason in favor for regulations and statutes.
      Chloe has no obligation to abide by any legislation or regulation unless she voluntarily submits herself to it. If you watched the video, you would see where I explained the regulators were targeting her parents by using her as the subject. They cannot arrest an 11 year-old girl… let me rephrase that, they may claim they can arrest an 11 year-old girl but have not sufficiently indoctrinated the majority of people to accept it yet.
      When you have something of substance to respond with, please do.

    • markmccoy says:

      Digging a little further, looking at the first link, we see "Permit Required" under Sect 10:
      Sect. 10 Permit Required – It shall be unlawful for any person to operate a food service establishment, retail food store, or temporary food establishment, within the County of Madison, State of Illinois, who does not possess a valid permit issued by the Madison County Health Department. Only a person who complies with the requirements of this Ordinance shall be entitled to receive and retain such a permit. Permits shall not be transferable from one person to another person nor shall said permit be transferable to any location, building, or place other than that which it was originally issued. A valid permit shall be posted in every food establishment so as to be clearly visible to all customers. A valid permit is one that is not suspended, revoked, or expired.

      The following establishments shall be exempt from the provisions of this Ordinance:
      a) Establishments which have only non-perishable and/or non-potentially hazardous food and whose principle order of business is not to sell food for human consumption.
      b) Facilities licensed and inspected by the Illinois Department of Corrections.
      c) Facilities licensed by the Illinois Department of Public Health as provided for in 210 ILCS 35 the Community Living Facilities Licensing Act and 210 ILCS 45 the Nursing Home Care Act.

      Riverbender fails to identify where in the law, Chloe is made subject to the regulations. Again, they make generalizations and apply them to any and all circumstances which may appear as though they are engaged in a regulated activity, but which fail to provide specifics.

      Then, upon reviewing the second link to the Illinois Administrative Code, one has to ask, how broad and far reaching is this Code so as to embrace every personal or social interaction involving food? Reviewing the Authority Statement, we see:
      AUTHORITY: Implementing the Illinois Food, Drug and Cosmetic Act [410 ILCS 620] and the Sanitary Food Preparation Act [410 ILCS 650] and authorized by Section 21 of the Illinois Food, Drug and Cosmetic Act [410 ILCS 620/21] and Section 11.1 of the Sanitary Food Preparation Act [410 ILCS 650/11.1] and the Food Handling Regulation Enforcement Act [410 ILCS 625].

      Again, where in all of this do we find an 11 year-old making cupcakes? I love it when someone dumps a pile of legislation on my lap and says, "See! There's the authority!" and I have to dig through all of the disjointed, nonsensical legalese to disprove them. In this case, I retort with, "Give me the specific provisions".

      For example, look at the definition of Food Service Establishment in the County Code:
      Food Service Establishment shall mean any place where food is prepared and intended for, though not limited to, individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether consumption is on or off the premises and regardless of whether there is a charge for the food. The term also includes delicatessen type operations that prepare foods intended for individual portion service. The term does not include lodging facilities serving only a continental breakfast, (a continental breakfast is one limited to only coffee, tea, and/or juice and commercially prepared sweet baked goods), private homes or a closed family function where food is prepared or served for individual family consumption, retail food stores or the location of food vending machines (77 Ill. Adm. Code 750 & 760).

      This would seem to embrace every possible situation where food was prepared. Even the statement, "…private homes or a closed family function where food is prepared or served for individual family consumption…" leaves open to interpretation the possibility of requiring a permit for a Christmas party, birthday party, Super Bowl party, or other event involving people not of that individual family.

      Therefore, if you prepare or serve food to anyone outside your immediate family within your own home, you are required to procure a permit. I challenge you to find where in the Code that such a scenario is "exempt". It is not. It does not need to be, because it is not otherwise embraced by the Code. That does not make it exempt, it makes it outside the jurisdiction to begin with. To give you an example of how exemptions apply, see:

      The following establishments shall be exempt from the provisions of this Ordinance:
      a) Establishments which have only non-perishable and/or non-potentially hazardous food and whose principle order of business is not to sell food for human consumption.
      b) Facilities licensed and inspected by the Illinois Department of Corrections.
      c) Facilities licensed by the Illinois Department of Public Health as provided for in 210 ILCS 35 the Community Living Facilities Licensing Act and 210 ILCS 45 the Nursing Home Care Act.

      In order to be exempt you must first be embraced by the law. Facilities and Establishments are, so therefore, they may be exempt. It does not say homes, backyard barbeques, church bake sales, Easy-Bake Ovens, sharing a bologna sandwich with a classmate at recess.

      Riverbender also takes exception at my use of the word "bureaucrat", which I then presume implies they are a bureaucrat or work in a bureaucratic setting. Again, someone please help yourself in proving my analysis to be incorrect, or better yet, proving the County to be correct. I'll be waiting.

  2. Riverbender says:

    Well, you can call it an analysis if want. And, you can dizzy yourself (and anyone else who reads it) around and around in circles talking semantics like you did above. In the end, it is just your interpretation of the law based upon your opinion of who and what should be regulated. Every one of these enforcing agencies have lawyers go over the regulations and the laws are enforced as interpreted by those lawyers. If your analysis had any truth to it, I am sure by now, someone like you or some ambulance chasing lawyer would have filed suit looking for a big payday. The fact is, they haven't. If they have, they certainly haven't won. If you were correct, there wouldn't be a hearing tomorrow to try and change the law. Why try to change a law that you claim has no authority over this young lady?

    Speaking of young lady. You continually mention her age. I am assuming you are using her age as a reason why she should be exempt. Either way, what does it matter? Up to 97% of all food borne illnesses are caused by the food handler. An 11-year old can make as many people just as sick as a 40 year old. As a matter of fact, just last year a local school had over 20 kids get sick in one class room. The culprit? Cupcakes!. The food handlers? Three 9 year olds!

    Finally, I do work in what would probably be considered a "bureaucratic setting". Do I enjoy every aspect of my job? No. I am one of the people who are out on the streets talking with people, building relationships and attempting to help businesses be successful but at the same time, do things within the law. Most of the time the people out there realize that some rules and regulations are there for a good reason. One of the last things I am is a bureaucrat.

    Btw, I did not listen to or read the house transcripts. I could care less what a bunch of blow hard politicians have to say about it. In the end, their babbling isn't legislation. What gets passed in text and interpreted by lawyers is what counts.

    • markmccoy says:

      Riverbender,

      I will call it an analysis and yes, it is my opinion. As far as the opinions of regulators and their lawyers go, do not expect a lawyer to expose the legalese word-game and bring the deceptive house of cards down and deprive themselves and the government of a substantial revenue stream by enlightening the rabble as to their trickery.

      Whether a lawyer wins has no relevance on the application of the law. Lawyers seldom raise jurisdictional issues in cases such as these because they have to work within the construct which is a fleecing operation by the respective governing bodies and want to avoid ostracization by their peers for compromising the system. Lawyers negotiate and mediate, they do not argue the law.

      Regarding Chloe's age, what kind of flawed reasoning is that? "An 11 year-old can make as many people sick as a 40 year old?" When should the government step in to prevent kids in grade school from sharing their milk, which may have sat at room temperature for too long, with a classmate who then gets a belly ache? Should we have the regulators haul the lactose-wielding offender off to jail for sharing milk without a permit? How far do you want government to intrude into our lives? Are you that afraid, or consider the public that incompetent, that we need everything to be managed by permits and fees? Tell me, how does that permit keep someone from spreading foodborne illness? It provides for a recourse and remedy should it occur, but it does nothing to prevent it.

      Considering your employment arrangement, I can see where you derive your affinity for "the system". You believe you are doing good by virtue of the power bestowed upon you by the State, but that power is not reserved just to you and your ilk. People can privately associate and prosper without the so-called "law" guiding their ideas. People are not inherently malevolent and in need of supervision by legislators.

      Regarding the transcripts, if you ever study law you will discover that everything in the application of the law involves "legislative intent". That is often left to judges to interpret the "intent" of the legislation, but the same blowhard politicians are the ones who determine at the outset what the law is intended to do. When they pass a law, just who do you think is imbued with the authority to determine what that law means and to whom it may be applied, if not the same blowhard legislators who left their mark in the actual debates which are transcribed for public review? If you don't care what they have to say about it then you don't care about the legislation because that is the product of what they have to say about it. What gets passed in text is the wind by the blowhard legislators. The lawyers interpret nothing. That had to be the most asinine comment I've heard in some time. Please take the time to re-phrase if you must, but you can't honestly believe your last comment.

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