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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
HOUSE BILL 2010 By: Townley
AS INTRODUCED
An Act relating to public health and safety; amendin g
63 O.S. 2011, Sections 1 -1101 and 1-1118, as last
amended by Section 1, Chapter 50 5, O.S.L. 2019 (63
O.S. Supp. 2020, Section 1 -1118), which relate to
food; defining terms; modifying creation of certain
fees; requiring mobile food vendors follow certain
laws; allowing mobile food vendors to operate in
certain locations; requiring mobile food vendors
operate in a certain manner; authorizing the
Department of Health to promulgate rules; authorizing
local authorities to regulate mobile food vendors;
allowing administrative hearing upon suspension or
revocation of certain license; establishi ng
penalties; providing appeals process; construing law;
providing for codification; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 63 O.S. 2011, Section 1 -1101, is
amended to read as follows:
Section 1-1101. For the purposes of this article:
(a) The term "food" means:
(1) articles used for food or drink for man,
(2) chewing gum, and
(3) articles used for components of any such article.
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(b) The term "label" means a display of written, printed or
graphic matter upon the immediate container of any article; and a
requirement made by or under authority of this article that any
word, statement, or other information appearing on the label shall
not be considered to be complied with unless such word, statement,
or other information also appears on the outside container or
wrapper, if there be any, of the retail package of such article, or
is easily legible through the outside container or wrapper.
(c) The term "immediate container" does not include package
liners.
(d) The term "labeling" means all labels and other written,
printed or graphic matter :
(1) upon an article or any of its containers or wrappers, or
(2) accompanying such article.
(e) If an article is alleged to be misbranded because the
labeling is misleading, or if an advertisement is alleged to be
false because it is misleading, then in determining whether the
labeling or advertisement is misleading there shall be taken into
account (among other things) not only representations made or
suggested by statement, word, design, device, sound, or in any
combination thereof, but also the extent to which the labeling or
advertisement fails to reveal facts material in the light of such
representations or material with respect to consequences which may
result from the use of the article to which the labeling or
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advertisement relates, under the conditions of use prescribed in the
labeling or advertisement thereof, or under such conditions of use
as are customary or usual .
(f) The term "advertisement" means all representations
disseminated in any manner or by any means, other than by labeling,
for the purpose of inducing, or which are likely to induce, directly
or indirectly, the purchase of food.
(g) The term "contaminated with filth" applies to any food not
securely protected from dust, dirt, and, as far as may be necessary
by all reasonable means, from all foreign or injurious
contaminations.
(h) The provisions of this article regarding the selling of food
shall be considered to include the manufacture, production,
processing, packing, exposure, offer, possession, and holding of any
such article for sale; and the sale, dispensing, and giving of any
such article, and the supplying or applying of any such articles in
the conduct of any food establishment.
(i) The term "Federal Act" means the Federal Food, Drug, and
Cosmetic Act.
(j) The term "mobile food establishment " means a facility,
including a trailer, that prepares food and beverages, is vehicle
mounted, is Department of Transportation road approved, including
wheels and axles, is readily moveable and remains at one physical
address for no more than twelve (12) hours at one time, unless the
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truck is operating on private property. A mobile food establishment
operating on private property may remain at one physical address for
no more than fourteen (14) days.
(k) The term "mobile push cart" means a non-self-propelled food
unit that can be manually moved by an average person without being
vehicle mounted.
(l) The term "mobile retail food establishment " means a licensed
unit which sells packaged foods from a stationary display at a
location some distance from the unit but still at the same physical
address for no more than twelve (12) hours, provided the licensed
unit is on the premises and readily available for inspection and the
food has been prepared in a facility that is regulated by the Good
Manufacturing Practices in Title 21 of the Code of Federal
Regulations or regulated as a license holder pursuant to Section
310:260 of the Oklahoma Administrative Code , Good Manufacturing
Practice Regulations, Oklahoma Department of Agriculture, Food and
Forestry, and United States Department of Agriculture, or this act.
(m) The term "mobile food vendor" means any person who dispenses
food or beverages from a mobile food establishment, mobile push cart
or mobile retail food establishment.
(n) The term "mobile food vending" means dispensing food or
beverages from a food vending vehicle.
(o) The term "food vending vehicle " means a mobile food
establishment, mobile push cart or mobile retail food establishment.
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(p) The term "local authority" means any local government ,
including any town, city, charter city, political subdivision or
county.
(q) The term "public property" means any property owned and
operated by this state or a local authority for the benefit of the
public and includes all rights -of-way contained wholly within any
state or local authority parks.
(r) The term "temporary mass gathering " means an actual or
reasonably anticipate d assembly of three hundred or more people for
an event that continues, or reasonably can be expected to continue,
for two (2) or more hours per day.
(s) The term "nonobstructive spot inspection " means an
inspection of a mobile food establishment at a temp orary mass
gathering that is conducted, if practicable, before the start of the
temporary mass gathering, and that does not exceed ten (10) minutes
in length if conducted during a high -traffic time of the gathering.
SECTION 2. AMENDATORY 63 O.S. 2011, Section 1 -1118, as
last amended by Section 1, Chapter 505, O.S.L. 2019 (63 O.S. Supp.
2020, Section 1-1118), is amended to read as follows:
Section 1-1118. A. It shall be unlawful for any person to
operate or maintain any establishm ent, stationary or otherwise,
where food or drink is offered for sale, or sold, to the public,
unless the person is the holder of a food establishment license
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issued for such purpose by the State Commissioner of Health or
designee. A food establishment li cense shall not be required for:
1. A produce stand that offers only whole, uncut and
unprocessed fresh fruits, melons, vegetables and legumes and/or
whole uncracked and unprocessed nuts;
2. A manufacturer, wholesaler or broker of food licensed
pursuant to Section 1-1119 of this title;
3. A kitchen in a private home if only food that does not
require time and temperature control for safety is prepared for sale
or service at a function such as a nonprofit civic, charitable or
religious organization 's bake sale;
4. An area where food that is prepared as specified in
paragraph 3 of this subsection is sold or offered for human
consumption;
5. A private home that receives catered or home -delivered food;
6. A hotel licensed pursuant to Section 1 -1201 of this title
which provides limited food service in compliance with rules
promulgated by the State Board of Health;
7. A kitchen in a private home or in a bed and breakfast that
prepares and offers food to guests, if the home is owner -occupied,
the number of available guest bedrooms does not exceed three, and
breakfast is the only meal offered;
8. A nonprofit civic, charitable or religious organization
using unpaid individuals to prepare or serve food on its behalf, for
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occasional fund-raising events sponsored and conducted by the
organization. For the purposes of this paragraph, an "occasional
fund-raising event" shall be defined as an event that occurs four
times a year or less;
9. Day care centers or family day care centers, and all other
child care facilities as defined and licensed pursuant to the
provisions of the Oklahoma Child Care Facilities Licensing Act;
10. Nursing facilities and specialized facilities, as defined
in and licensed pursuant to the provisions of the Nursing Home Care
Act, residential care homes as defined by the Residential Care Act,
adult day care centers as defined by the Adult Day Care Act, and
assisted living centers and continuum of care facilities licensed
pursuant to the Continuum of Care and Assisted Living Act; and
11. Other establishments exempted from food establishment
licensure pursuant to state law.
B. Each license shall expire one (1) year following the date of
its issuance. The State Department of Health shall charge and
collect for each such license an annual fee to be fixed by the State
Board Department of Health by rule or as provided for in this
section.
1. The Board may provide by rule for a fee -exempt license for a
food establishment operated by a nonprofit, civic, charitable or
religious organization that uses unpaid persons to sell or offer
food on a more frequent basis than the occasional fund -raising
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event. A fee-exempt license shall not expire but shall remain in
full force and effect until affirmatively revoked, suspended,
annulled or withdrawn by the Depa rtment in accordance with
applicable law.
2. The Board may by rule also provide that licenses for
establishments serving events of limited duration or operating on a
seasonal basis shall extend only for the term of the event or
season, and may by rule adj ust the fees for such licenses
accordingly.
3. The Board shall provide by rule a three -day license for
vendors who only sell at farmers markets as defined in 310:257 -1-2
of the Oklahoma Administrative Code or at county fairs. Licenses
for vendors who only sell at farmers markets or county fairs shall
not exceed Fifty Dollars ($50.00). Vendors who do not sell food and
vendors who meet the exceptions provided in subsection A of this
section shall not be required to obtain a three -day license or a
food establishment license.
C. The State Board of Health shall promulgate reasonable
standards and rules for sanitation of establishments required to be
licensed, which shall include the following: buildings, vehicles,
and appurtenances thereto, including plumbing , ventilation and
lighting; construction, cleanliness and bactericidal treatment of
equipment and utensils; cleanliness, wholesomeness, storage and
refrigeration of food and drink sold or served; cleanliness and
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hygiene of personnel; toilet facilities; dis posal of waste; water
supply; and other items deemed necessary to safeguard the health,
comfort, and safety of customers.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -1150 of Title 63, unless there
is created a duplication in numbering, reads as follows:
A. Mobile food vendors shall follow all state and local laws
and regulations governing operations in the jurisdiction where the
vendor is operating that are not in conflict with this s ection.
B. A mobile food vendor may operate in the following locations:
1. On public property, so long as the vending vehicle is not
parked within twenty (20) feet of an intersection. A mobile food
vendor may operate from legal parking spaces on the pub lic right-of-
way, including metered spaces , upon payment of appropriate fees.
When operating on public property, a mobile food vendor is subject
to the same parking rules, restrictions and obligations as other
commercial vehicles; and
2. On private property under the following circumstances:
a. the property is located in a zoning district where
food service establis hments are permitted to operate
and the vendor has permission of the property owner ,
designee or lessor, and
b. the property is located i n a residential zoning
district and the mobile food vendor has been invited
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by a resident or group of residents in that district
to operate on their property for the purpose of
serving food to that resident, group of residents or
their guests.
C. A mobile food vendor shall not operate in any manner which
will interfere with or obstruct the free passage of pedestrians or
vehicles along any street, sidewalk or parkway.
D. When operating, a mobile food vendor shall:
1. Maintain a food vending vehicle in good ope rating order;
2. Provide a waste receptacle for customers which is visible
and request its use by customers;
3. Remove and dispose of all refuse within a twenty-five-foot
radius of the mobile food vendor 's operating area at the conclusion
of operation;
4. Display the mobile food vendor 's food establishment license
in a conspicuous location for public view; and
5. If serving food at a temporary mass gathering, notify the
State Department of Health and the local authority in the
jurisdiction where the gat hering is located of the dates the mobile
food vendor will operate at the temporary mass gathering at least
five (5) business days prior to the gathering.
E. The State Department of Health may promulgate rules to
enforce the provisions of this section. Rules adopted shall not:
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1. Require a mobile food vendor to operate a specific distance
from the perimeter of an existing commercial establishment or to
enter into any agreement with a commercial establishment;
2. Require a mobile food vendor that serves only prepackaged
food or that does not prepare or open food to have a handwashing
sink in his or her food vending vehicle;
3. Require a mobile food vendor to associate with a commissary
if the vendor carries all the equipment necessary to comply with
health and safety standards and applicable regulations;
4. Limit the number of licensed mobile food vendors;
5. Require a mobile food vendor to obtain any additional
permits from a local authority unless the mobile food vendor seeks
to operate at an event sp onsored by a local authority or in a local,
public park;
6. Require a mobile food vendor to be fingerprinted or to
install a GPS tracking device on the vendor 's vehicle;
7. Require a mobile food vendor to stay in constant motion
except for when serving c ustomers;
8. Require a mobile food vendor to change locations unless the
vendor is operating in violation of this act;
9. Require a mobile food vendor to maintain insurance that
names a local authority as an additional insured unless the vendor
is attending an event sponsored by the local authority or operating
in a local, public park;
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10. Require a mobile food vendor to maintain a bond that names
a local authority as a beneficiary unless the vendor is attending an
event sponsored by the local authority or operating in a local
public park;
11. Require a mobile food vendor to submit to health
inspections beyond health inspections conducted by the Department or
by a local authority collaborating with the Department, unless the
Department is investigating a reported foodborne illness or
addressing a complaint of an imminent health or safety hazard to the
public;
12. Require a health inspection of a food vending vehicle more
than twice per year unless the Department is ensuring a mobile food
vendor has corrected a violation detected during a prior inspection,
is investigating a reported foodborne illness or is conducting a
nonobstructive spot inspection to ensure food safety;
13. Charge a mobile food vendor fees for a health inspection;
and
14. Require a mobile food vendor to submit to a state or local
fire inspection if the vendor can demonstrate it passed a state or
local fire inspection in the previous year.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-1151 of Title 63, unless there
is created a duplication in numbering, reads as follows:
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A. The local authority may regulate state -licensed mobile food
vendors in accordance with this section. In relation to a state -
licensed mobile food vendor's operations, a local authority may:
1. Restrict the operation of a noisemaking device that exceeds
seventy-five (75) decibels measured at twenty -three (23) feet from
the food vending vehicle during certain hours of the day;
2. Restrict a mobile food vendor from operating in a public
park or require a special permit and payment of fees to operate in a
public park;
3. Prohibit a mobile food vendor from blocking or restricting
ingress to or egress from private property;
4. Develop a mobile food ve ndor metered parking pass for a fee
that permits a mobile food vendor to operate from metered parking
spaces for longer than the vendor would otherwise be permitted;
5. Investigate reports of foodborne illnesses;
6. Report a mobile food vendor 's suspected violation of this
act to the State Department of Health; and
7. Issue citations and penalties to mobile food vendors for
violations of state and local law not inconsistent with this a ct.
B. In relation to a state -licensed mobile food vendor 's
operations, a local authority may not:
1. Prohibit a mobile food vendor from lawfully operating in its
jurisdiction if the vendor holds a food establishment license and is
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in compliance with all other state laws and local laws not in
conflict with this act;
2. Require a mobile food vendor to obtain any license or permit
from a local authority to operate a food vending vehicle unless the
mobile food vendor seeks to operate at an event sponsored by the
local authority or in a local, public park;
3. Restrict the duration of time a mobile food vendor may
operate on private property in a district where food vending is
permitted unless the mobile food vendor is in violation of this act;
4. Require a mobile food vendor to operate a specific distance
from commercial food or retail establishments or to enter into any
agreement with commercial food or retail establishments;
5. Require a mobile food vendor to be fingerprinted or to
install a Global Positioning System (GPS) tracking device on its
vehicle;
6. Require a mobile food vendor to stay in constant motion
except for when serving customers;
7. Require a mobile food vendor to change locations unless the
vendor is operating in violation of this act;
8. Require a mobile food vendor to maintain an insurance policy
that names the local authority as an additional insured unless the
vendor is attending an event sponsored by the local authority or
operating in a local, public park;
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9. Require a mobile food vendor to maintain a bond that names a
local authority as a benefici ary unless the vendor is attending an
event sponsored by the local authority or operating in a local,
public park;
10. Require a mobile food vendor to submit to health
inspections beyond health inspections conducted by or in
collaboration with the Departm ent, unless the local authority is
investigating a reported foodborne illness or addressing a complaint
of an imminent health or safety hazard to the public;
11. Require a health inspection of a food vending vehicle more
than twice per year unless the loc al authority, in collaboration
with the Department under this act, is ensuring a mobile food vendor
has corrected a violation detected during a prior inspection, is
investigating a reported foodborne illness or is conducting a
nonobstructive spot inspectio n to ensure food safety;
12. Charge a mobile food vendor fees for a health inspection;
13. Require a mobile food vendor to submit to a state or local
fire inspection if the vendor can demonstrate it passed a state or
local fire inspection in the previous year;
14. Require a mobile food vendor to enter into any agreement
with a commercial establishment or restaurant;
15. Regulate the equipment requirements for a food vending
vehicle; and
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16. Require a mobile food vendor to associate with a commissary
if the vendor has all the equipment necessary to comply with state
regulations pertaining to food vending vehicles.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -1152 of Title 63, unless there
is created a duplication in numbering, reads as follows:
A. Any mobile food vendor wh o has been notified of a possible
suspension or revocation of his or her license may request an
administrative hearing in accordance with the Administrative
Procedures Act and the State Department of Health 's rules.
B. The Department may issue civil penalties to a person who
operates as a mobile food vendor without a license, with a suspended
license or after a license is revoked.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -1153 of Title 63, unless there
is created a duplication in numbering, reads as follows:
A person aggrieved by an agency decision following a hearing has
the right to appeal t he decision in accordance with the
Administrative Procedures Act and the State Department of Health 's
rules.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -1154 of Title 63, unless there
is created a duplication in numbering, reads as follows:
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A. This act shall not be construed to require a local authority
to adopt a program regulating mobile food vendors or to modify its
existing program regulating mobile food vendors; provided the
regulations do not conflict with this act.
B. This act shall not be construed to impede the State
Department of Health or local authority in any investigation of a
reported foodborne illness.
SECTION 8. This act shall become effective Novembe r 1, 2021.
58-1-6569 AMM 01/16/21