Ofelia was hawking tamales near the bus stop at the corner of 18th and Mission when the police officer approached. It was early in the morning, in 2005, and she had just finished selling for the day to the local workers, high school kids, and moms who were her daily customers. The officer issued her a ticket, speaking only in English.
A migrant from Guerrero, Mexico, Ofelia didn’t fully understand until later that she was being charged with illegal street vending, facing a fine of nearly $400. As a monolingual Spanish speaker, she couldn’t defend herself until her court date, when an interpreter and community supporters helped her to fight the charge.
The case was dismissed, but the fear lingered, says Ofelia’s 26-year old daughter, Reyna, as she translates and fills in the details of that incident. In the years since, mother and daughter have continued to navigate the edges of San Francisco’s economy. Ofelia continued selling on the street, while loyal customers kept watch for police. A local coffee shop owner invited her to sell her wares within the restaurant. Then, someone Ofelia thought worked for the city started following her, Reyna says. Ofelia was scared. She had no other way to make a living.
In September, Gov. Jerry Brown signed into law a bill that may make it easier for Ofelia — and thousands of others selling home-cooked food directly to customers — to legalize their businesses. The Homemade Food Operations Act took effect Jan. 1, but it still has a long way to go: In order for cooks to benefit from it, individual California counties must opt in and create a local permitting process. So far, no county has done so.
San Francisco will likely be among the first, according to Matt Jorgensen, founder of the C.O.O.K. Alliance, the lead advocacy group pushing for the bill.
Jorgensen has been working with county officials across California, as well as a state-level working group. He said the law went largely ignored by local officials until the end of the year, but that several counties across the state are now taking steps to potentially adopt it. And, based on conversations he’s had with city staff and elected officials here, he believes San Francisco will be among them.
Before pushing for the new law, Jorgensen co-founded Josephine, an Oakland-based meal-sales app that connected home cooks with local customers. The service was shut down in 2016 after a sting operation by Alameda County Environmental Health and Berkeley Public Health officials over concerns about food safety in unpermitted kitchens. The company, which would have benefitted from the new law, continued operating in Portland and Seattle for a short time, but closed all operations in 2018 before the new law passed.
While his company will not reopen, Jorgensen said in September that he plans to continue efforts to “influence the home-cooking economy” and make it easier for people to start small food businesses—or test out bigger ideas—using the new permits.
California food business regulations require that food for sale be prepared in a certified commercial kitchen that has been inspected and meets requirements for storage temperatures, sinks, ventilation, wastewater systems and more. Since 2012, exemptions have been made for “Cottage Food” operators — cooks in registered and permitted home kitchens preparing small amounts of packaged foods deemed low-risk for foodborne pathogens. Home-cooked meals — like those prepared and sold by Ofelia and an estimated 50,000 other home cooks across the state — did not qualify for that exemption.
The new law allows counties to create special microenterprise home-kitchen permits, which would include food safety standards better suited to a home kitchen. These permits would be limited to businesses with no more than one full-time employee and less than $50,000 in gross annual sales. Counties can place further restrictions on home-cooking operations, such as the types of food allowed and the days and times a kitchen can operate.
The law will allow home cooks — many of whom are already making and selling food — to legitimize their businesses and no longer risk sanctions. It will also lower the price of starting or testing out a small food business: The cost of renting or building a commercial kitchen is a significant barrier to entry.
Violating California’s retail food laws is a misdemeanor that can carry fines and up to six months in county jail. Many of the cooks who would benefit from implementation of the law are immigrants, women and people of color who are already marginalized in the American economy. For undocumented migrants and temporary visa-holders — especially women, for whom food businesses are a common way to make ends meet — run-ins with the law also bring the risk of deportation and separation from the family and community they’ve built here.
La Cocina, a food business incubator in the Mission, has been helping informal food businesses shift into the formal economy since 2005. When Ofelia thought she was being followed by a city employee and feared a second citation, she went to La Cocina for the support and resources to legalize her tamale business.
La Cocina program manager Emiliana Puyana said that while the organization “feels strongly that the [new] law is just one step” to support food entrepreneurs, it “really does provide a viable avenue for legal access to a supplemental income.”
For “people in the Mission who are pushed to the margins and criminalized, this removes that barrier,” she said.
One common criticism of the bill, voiced by county health department officials from across the state while state lawmakers considered it, was that the lowered safety standards would lead to an increase in foodborne illness. Puyana dismissed that criticism as a “scare tactic used to keep people out of industries that would vastly benefit from having them there.”
“This is already happening,” Puyana added, noting that the economy developed here by informal food vendors is “vibrant and beautiful” and hasn’t caused a disproportionate number of food-poisoning cases. She expects that the same will continue under the new law — and that more potential hazards will be corrected because of it.
She is only concerned with the permitting process itself, saying that the digital system to which the city has shifted most of its permit applications is not easy for many immigrants to navigate. “This law will affect, for the most part, immigrants and people of color and people who are incredibly strategic and creative about the way they generate income,” she said. But many of those folks are less well-versed in computers or in “jumping online to fill out a lengthy permit” application. She hopes that if San Francisco officials opt into the new law, they will rectify this.
Department of Public Health spokeswoman Veronica Vien could not, at this point, share details on the process for developing permits or considering the amendments necessary to adopt the law. “We understand the city is interested in opting into the program,” she said. “We are still in the early stages of review,” hoping to ensure “smooth sailing if the city ultimately adopts the program.”
Ofelia and Reyna no longer have a stake the decision made in San Francisco. After 25 years of struggling to make ends meet in the Mission, they were displaced: They recently moved to Oakland, where they’re still trying to formalize their business. They’re working now to obtain permits and a lease on a kitchen in the Fruitvale District. Until then, they continue selling to old and new customers using social media and personal networks.
“The ironic part” of being an undocumented migrant, Reyna says, is that “we’re not able to work without a Social [Security Card] — but we are able to create a business.” Through those businesses, she says, people like her and her mother are able to find dignity and make a difference in their community.
“Street vending allows our community members to become part of this community and economy and sustain ourselves,” she says. “It’s time to acknowledge that and stop citing and incarcerating them for selling their goods to make a living.”
And street vending goes beyond economics, she says, reflecting on her family’s journey from Mexico to Mission Street and now to Oakland. “There’s something about migrating and being able to carry your food with you and provide it to different communities and still find that connection.” When you share food, she says, you belong.
Because both women are undocumented, Ofelia and Reyna asked that we not use their last names. Because they continue to operate informally until their food vendor permit is approved or the new law takes effect at a county level, we have also decided not to disclose the name of their business.
There’s a reason permits exist and as a man of color, minority, or marginalized person I don’t see how this is a race issue. But clever framing to make it look that way. Not all issues are based on race. There needs to be permits for sanitary reasons.
Will be interesting to see how this shakes out. Limiting the income to only $50,000/year may hurt. If you make $40,000 a year living in the region of California, USA, you will be taxed $7,174. That means that your net pay will be $32,826 per year, or $2,736 per month. Your average tax rate is 17.93% and your marginal tax rate is 25.65%.
Is $7174 in tax worth it to go through the permitting process and deal with all the crap that goes along with it? Or, is a $400 fine every once in a while worth the risk?
This new law feels really warm and fuzzy, but in reality, I don’t think it’s going to help much. Generally speaking, most people want to be legit, but when you tell them what it costs to be that way, they stay off the grid.