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SENATE FLOOR VERSION
April 14, 2022
COMMITTEE SUBSTITUTE
FOR ENGROSSED
HOUSE BILL NO. 2010 By: Townley and Johns of the
House
and
Montgomery and Bergstrom of
the Senate
[ public health and safety - mobile food vendors to
operate in certain locations - local authorities to
regulate mobile food vendors - codification -
effective date ]
BE IT ENACTED BY THE PE OPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 63 O.S. 20 21, Section 1-1101, is
amended to read as follows:
Section 1-1101. For the purposes of this article act:
(a) The term "food" means:
(1) articles used for food or drink for man human
consumption,
(2) chewing gum, and
(3) articles used for components of any such arti cle.
(b) The term "label" means a display of written, printed or
graphic matter upon the immediate container of any article; and a
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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 w rapper.
(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 r eveal 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 o r
advertisement relates, under the conditions of use prescribed in the
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labeling or advertisement thereof, or under such conditions o f use
as are customary or usual.
(f) The term "advertisement" means all representations
disseminated in any manner or by an y means, other than by labeling,
for the purpose of inducing, or which are likely to indu ce, 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 ma y 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, produ ction,
processing, packing, exposure, offer, posses sion, and holding of any
such article for sale; and the sale, dispensing, and giving of a ny
such article, and the supplying or apply ing 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 road-approved by the Department of Transportation
including wheels and axles, is readily movable, and remains at one
physical address for no mor e than twelve (12) hours at one time,
unless the mobile food establishment is operating on private
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property. A mobile food establishment operating on private propert y
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 enterprise which sells packaged foods from a stationary
display at a location some distance from the establishment 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 th at is
regulated by the good manufacturing practices in Title 21 of the
Code of Federal Regulations or pursuant to Section 310:260 of the
Oklahoma Administrative Code, Good Manufacturing Practice
Regulations, Oklahoma Department of Agriculture, Food , and Forestry,
and United States Departmen t 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 estab lishment.
(n) The term "mobile food vending" means dispensing food or
beverages from a food vending vehi cle.
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(o) The term "food vending vehicle" means a mobile food
establishment, mobile push cart, or mobile retail food
establishment.
(p) The term "local authority" means any local government
including any town, c ity, charter city, political subdivision , or
county.
(q) The term "public property" means any property owned and
operated by this state or a loc al 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 anticipated assembly of three hundred or more people for
an event that continues, or reasonably can be expe cted to continue,
for two (2) or more hours per day.
(s) The term "nonobstructive spot insp ection" means an
inspection of a mobile food establishment at a temporary mass
gathering that is conduct ed, if practicable, before the start of the
temporary mass gathering and that does not exceed ten (10) minute s
in length if conducted during a high -traffic time of the gathering.
SECTION 2. AMENDATORY 63 O. S. 2021, 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 establishment, stationary or otherwi se,
where food or drink is offered for sale, or sold, to the public,
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unless the person is the holder of a food establishment license
issued for such purpose by the State Commissioner of Health or
designee. A mobile food vendor that seeks to operate in a c ounty
with a population of more than four hundred thousand (400,000)
according to the latest Federal Dec ennial Census that is governed by
a city-county health departm ent shall obtain a food establishment
license from the local authority which has the population over four
hundred thousand (400,000) according to the latest Federal Decen nial
Census. This food establishment license shall be recognized by the
State Commissioner of Health and all local authorities as a state
food establishment li cense for purposes of this title. A food
establishment license shall permit the mobile food ven dor to operate
in any local authority's jurisdiction upon the local authority 's
recognition of the license, the issuance of any rele vant local
license not in conflict with this act, and the vendor's compliance
with all other municipal provisions not in conflict with this act.
A food establishment license shall not be required for:
1. A produce stand that offers only whole, un cut 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 t hat does not
require time and temperature control for safety is prepared for sale
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or service at a function such as a nonprof it 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 Commissioner 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
occasional fund-raising fundraising events sponsored and conducted
by the organization. For the purposes of this parag raph, an
"occasional fund-raising fundraising 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 Lice nsing Act;
10. Nursing facilities and specialized facilities, as def ined
in and licensed pursuant to the provisions of the Nursing Home Care
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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 faci lities 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 S tate Department of Health shall charge and
collect for each such license an annual fee to be fixed by the State
Commissioner of Health by rule or as provided for in this section .
1. The Commissioner 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 fundraising 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 Department in
accordance with applicable law.
2. The Commissioner may by rule also provid e 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 adjust the fees for such licenses
accordingly.
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3. The Commissioner 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 ma rkets 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.
4. The Commissioner shall provide by rule a multisea sonal
license for snow cone stands that sell hot beverages in addition to
snow cones. A snow cone stand that does n ot sell hot beverages
shall be considered a seasonal food establishment.
C. The State Commissioner 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 treatmen t of
equipment and utensils; cleanliness, wholesomeness, storage and
refrigeration of food and drink sold or served; cleanliness and
hygiene of personnel; toilet facilities; disposal of waste; water
supply; and other items deemed necessary to safeguard the health,
comfort, and safety of customers.
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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. A mobile food vendor with a food establishment license
required under Section 1-1118 of Title 63 of the Oklahoma Statutes is
authorized to operate in the state subject to this section. 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 act.
B. A mobile food vendor with a food establishment license
required under Section 1-1118 of Title 63 of the Oklahoma Statutes
shall provide a copy of its state license to a local authority for
recognition by the local authority before operating in the local
authority's jurisdiction. The local authority shall recognize a
lawful and valid state license and authorize the mobile food vendor
to operate in its jurisdiction within five (5) business days of
receipt of the state license and verification of complian ce with
local regulations not in conflict with this act . Such recognition
and authorization may include issuing a local license or permit to
the mobile food vendor. Any local license or permit issued shall
not impose additional requirements that conflict with this act.
C. Upon compliance with subsection B of this section, a mobile
food vendor may operate in the following locations:
1. Any location allowed by the local authority; and
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2. On private property under the following circumstances:
a. the property is located in a zoning district where
food service establishments are permitted to operate
and the vendor has permission of the property owne r,
designee, or lessor,
b. the property is located in a residential zoning
district and the mobile food vendor has been invited
by a resident or group of residents in t hat district
to operate on their property fo r the purpose of
serving food to that reside nt, group of residents, or
their guests; provided, that the operation of mobile
food vendors on the subject property not exceed twelve
(12) days per year, and
c. the mobile food vendor would not cause a nuisance.
D. 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.
E. A mobile food vendor shall not operate in a state pa rk
without having a contract or lease agreement approved by the
Oklahoma Tourism and Recreation Commission.
F. When operating, a mobile food vendor shall:
1. Maintain a food vending vehicle in good operatin g order;
2. Provide a waste receptacle for cust omers that is visible and
request that customers use it;
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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 gather ing is to be located of the dates the
mobile food vendor will operate at the temporary mass gathering at
least ten (10) business days prior to the gathering.
G. The State Commissioner of Health may promulgate rules to
enforce the provisions of this section. Rules adopted shall not:
1. Require a mobile food ven dor to operate a specific distance
from the perimeter of a n 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 ope n food to have a handwashing
sink in the 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
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to operate at an event which is permitted by a local authority or in
a local, public park;
6. Require a mobile food vendor to be fingerpri nted or to
install a Global Positioning System (GPS) tracking device on the
vendor's vehicle;
7. Require a mobile food vendor to stay in constant motion
except for when serving customers;
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 operating at an event sponsored by the loc al authority or
operating in a local, public park;
10. Require a mobile food vendor to maintain a bond that names
a local authority as a beneficiary unless the vendor is operating at
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 heal th or safety hazard to the
public;
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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 du ring a prior inspection,
is investigating a r eported foodborne illness, or is conducting a
nonobstructive spot inspection to ensure food safety;
13. Charge a mobile food vendor fees for a health inspection;
or
14. Require a mobile food vendor to submit to a state fire
inspection if the vendor can demonstrate it passed a state or local
fire inspection in the previous twelve (12) months.
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:
A. The local authority may regulate mobile food vendors in
accordance with this section. In relation to a mobile food vendor's
operations, a local authority may:
1. Restrict the operation of a noisemaking device t hat exceeds
seventy-five (75) decibels measured at twenty-three (23) feet from
the food vending vehicle during ce rtain 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 op erate in a
public park;
3. Prohibit a mobile food vendor from blocking or restricting
ingress to or egress from private property;
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4. Develop a mobile food vendor metered parking pass for a fee
that permits a mobile food vendor to operate from metered par king
spaces for longer than the vendor would otherwise be permitted;
5. Investigate reports of foodborne illness es;
6. Report a mobile food vendor 's suspected violation of this
act to the State Department of H ealth;
7. Issue citations and penalties to m obile food vendors for
violations of state and local law not inconsistent with this act;
and
8. Adopt and enforce other regulations in conformity to
municipal powers that are not inconsistent with this act. Any
regulation regarding mobile food vendors mu st address public health
or safety risks.
B. In relation to a mobile food vendor's operations, a local
authority may not:
1. Prohibit a mobile food vendor from lawfully operating in its
jurisdiction if the ve ndor holds a food establishment license
required under Section 1-1118 of Title 63 of the Oklahoma Statutes
and is in compliance with this act and all other state and local
laws not in conflict with this act;
2. Require a mobile food vendor to obtain any l icense or permit
from the local authority to o perate a food vending vehicle unless:
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a. the local authority is issuing a local license in
recognition of a state license under subsection B of
Section 3 of this act,
b. the mobile food vendor seeks to operate at an event
which has been permitted by the local authority, or
c. the mobile food vendor seeks a food establishment
license from a local authority required by Section 1-
1118 of Title 63 of the Oklahoma Statutes;
3. Require a mobile food vendor that is operating on private
property with the permissio n of the owner to operate a specific
distance from commercial food or reta il establishments;
4. Require a mobile food vendor to enter into any agreement
with commercial food or r etail establishments;
5. Require a mobile food vendor to be fingerprinted or to
install a Global Positioning System (GPS) tracking device on the
vendor's vehicle;
6. Require a mobile food ven dor to stay in constant motion
except for when serving customers;
7. Require a mobile food vendor to maintain an insurance policy
that names the local authority as an additional insured unless the
vendor is operating at an event sponsored by the local author ity or
operating in a local, public park;
8. Require a mobile food vendor to maintain a bond that names a
local authority as a beneficia ry unless the vendor is operating at
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an event sponsored by the local autho rity or operating in a local,
public park;
9. Require a mobile food vendor to submit to health inspections
beyond health inspections conducted by or in collaboration with the
Department, unless the local authority is investigating a reported
foodborne illness or addressing a complaint of an imminent health or
safety hazard to the public;
10. Require a health inspection of a food vending vehicle more
than twice per year unless the lo cal authority, in collaboration
with the Department under this act, is ens uring a mobile food vendor
has corrected a viol ation detected during a prior inspection, is
investigating a reported foodborne illness, or is conducting a
nonobstructive spot inspection to ensure food safety;
11. Charge a mobile food vendor fees for a dditional health
inspections;
12. Charge a mobile food vendor fees for any local license or
permit allowed under Section 3 of this act beyond the administrative
cost of issuing the loca l license or permit;
13. Require a mobile food vendor to submit to a state fire
inspection if the vendor can demonstrate it passed a state fire
inspection in the previous twelve (12) months;
14. Require a mobile food vendor to enter into any agreem ent
with a commercial establishment or restaurant;
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15. Regulate the equipment r equirements for a food vending
vehicle; or
16. Require a mobile food vendor to associate with a commissary
if the vendor has all the e quipment 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 Sec tion 1-1152 of Title 63, unless there
is created a duplication in numbering, reads as follows:
A. Any mobile food vendor who has been notified of a possible
suspension or revocation of his or her state license may request an
administrative hearing in acco rdance with the Administrative
Procedures Act and rules promulgated by the State Commissioner of
Health.
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 revoke d.
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 fol lows:
A person aggrieved by a decision of the State Department of
Health following a hearing has the right to appeal the decision as
provided in the Administrative Procedures Act and rules promulgated
by the State Commissioner of Health.
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SECTION 7. NEW LAW A n ew section of law to be codified
in the Oklahoma Statutes as S ection 1-1154 of Title 63, unless there
is created a duplication in numbering, reads as follows:
A. This act shall not be construed to require a local authority
to adopt a program regulating mo bile 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 investigatio n of a
reported foodborne illness.
SECTION 8. This act shall become effective November 1, 20 22.
COMMITTEE REPORT BY: COMMIT TEE ON BUSINESS, COMMERCE AND TOURISM
April 14, 2022 - DO PASS AS AMENDED