Can a church or home kitchen prepare food for a homeless shelter without being treated as a restaurant for health-inspection purposes?

Plain-English summary

A homeless shelter in Arlington County asked members of a local church to prepare food in their private home kitchens or in the church kitchen and donate it to the shelter. Delegate Sickles asked whether doing so would subject the kitchens to Virginia's restaurant inspection regime under Title 35.1.

The AG concluded no. Section 35.1-14.2 expressly exempts "charitable organizations engaged in food distribution programs for needy persons" from state and local food service and preparation regulations, and the statute permits those organizations to accept food prepared by employees or volunteers "in private homes or in facilities not otherwise licensed as provided in this chapter." A homeless shelter qualifies as a "charitable organization" under the statute. The Board of Health is authorized to issue advisory standards for safe food handling by such kitchens, but those standards are not mandatory.

The opinion preserved two other authorities. The State Health Commissioner retains authority to act in a health emergency. The Virginia Department of Agriculture and Consumer Services retains its separate authority to enforce laws against adulteration and misbranding of food.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Anyone planning a church or home-kitchen food donation program should confirm that § 35.1-14.2 and the related provisions still operate as described in the opinion, and should check any locally adopted guidance.

Background and statutory framework

The State Health Commissioner administers food service regulation in Virginia through the restaurant licensing regime in Title 35.1. Section 35.1-1(9) defines "restaurant" broadly to include any place where food is prepared for service to the public on or off the premises, or any place where food is served. Licensed restaurants are subject to periodic inspections under § 35.1-22, with license suspension or revocation as the enforcement lever.

The charitable-food exemption in § 35.1-14.2 carves out a separate path. Subsection A deems charitable organizations engaged in food distribution programs for needy persons exempt from state and local food-service regulations. Subsection B allows those organizations to accept food prepared in private homes or in unlicensed facilities. Subsection C authorizes the Board of Health to issue advisory standards for safe preparation, handling, protection, and preservation of food, and those standards apply to organizations that fall within the exemption. The exemption expressly reaches "nonprofit homeless shelters and hunger prevention programs."

The opinion also flagged two adjacent regulatory regimes the exemption does not displace. The Virginia Department of Agriculture and Consumer Services (VDACS) has separate authority over food establishments and food processing plants under Title 3.2 (e.g., §§ 3.2-5100, 3.2-5102, 3.2-5126, 3.2-5130; 2 Va. Admin. Code § 5-585-40), but VDACS's authority is generally limited to establishments that process or offer food for retail sale. The State Health Commissioner's emergency public-health authority under §§ 32.1-13 and 35.1-10 is unaffected. And, the AG noted, the federal Bill Emerson Good Samaritan Food Donation Act, 42 U.S.C. § 1791, gives kitchens preparing food for charitable donation additional liability protection.

Common questions

Q: Could Arlington County still require the church kitchen to get a permit?
A: At the time, no. The opinion read § 35.1-14.2(B) as extending the exemption to both state regulations and local regulations and ordinances governing food preparation. A county could not impose its own permitting layer on top of a kitchen the state had statutorily exempted.

Q: Did the exemption depend on the kitchen being unpaid or volunteer-only?
A: The statute's text covered food prepared by "employees or volunteers" of the charitable organization in private homes or unlicensed facilities. The opinion did not turn on whether the cook was paid.

Q: What kinds of organizations counted as "charitable" for the exemption?
A: Section 35.1-14.2(B) expressly included nonprofit homeless shelters and hunger prevention programs. The opinion did not undertake to define the outer bounds of the term.

Q: Were the Board of Health's advisory standards mandatory?
A: No, the opinion said the standards are advisory only. The AG nonetheless noted that they "reasonably should be considered" by persons operating exempt kitchens, as a matter of public-health prudence.

Q: Did the exemption protect the kitchens from VDACS or emergency public-health orders?
A: No. VDACS retains its separate authority to enforce laws on adulteration and misbranding, and the State Health Commissioner retains authority to address health emergencies.

Citations and references

Statutes and regulations:

• Va. Code Ann. § 35.1-1(9) (definition of "restaurant")
• Va. Code Ann. § 35.1-2; § 35.1-5; § 35.1-14; § 35.1-18; § 35.1-20; § 35.1-22 (restaurant licensing and inspection)
• Va. Code Ann. § 35.1-14.2 (charitable-organization exemption)
• Va. Code Ann. § 35.1-10 (Commissioner's emergency authority)
• Va. Code Ann. § 32.1-13 (State Board of Health emergency authority)
• Va. Code Ann. § 3.2-5100; § 3.2-5102; § 3.2-5126; § 3.2-5130 (VDACS authority over food establishments)
• 2 Va. Admin. Code § 5-585-40 (food establishment definitions)
• 42 U.S.C. § 1791 (Bill Emerson Good Samaritan Food Donation Act)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/15-063-Sickles.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

July 22, 2016

The Honorable Mark D. Sickles
Member, Virginia House of Delegates
Post Office Box 10628
Franconia, Virginia 22310

Dear Delegate Sickles:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether certain kitchens are subject to inspection under state and local laws and regulations governing food preparation.

Background

You state that a homeless shelter in Arlington County requested that members of a local church prepare food in their private homes or in the kitchen of the church and donate it to the shelter. You ask whether their doing so would subject the church's kitchen, or the members' home kitchens, to health inspection under state and local laws.

Applicable Law and Discussion

The State Health Commissioner (the "Commissioner") has certain authority under statute to enforce the standards for food preparation in the Commonwealth.[1] To carry out this authority, the Commissioner administers licensing requirements for "restaurants" in the Commonwealth.[2] Section 35.1-1 of the Code defines the term "restaurant" generally to include "[a]ny place where food is prepared for service to the public on or off the premises, or any place where food is served."[3] Each restaurant is required to submit to periodic health inspections carried out by the Commissioner or his designee, and failure to pass an inspection may result in the Commissioner revoking or suspending its license.[4]

Although the private kitchens that are the subject of your inquiry prepare food for public consumption at an off-premises location, they are exempt from state regulations governing food preparation and service. Specifically, § 35.1-14.2 provides that "[c]haritable organizations engaged in food distribution programs for needy persons shall be deemed exempt from state and local regulations and local ordinances that govern food service and preparation."[5] The statute further provides that "such organizations may accept food prepared by their employees or volunteers in private homes or in facilities not otherwise licensed as provided in this chapter."[6] A homeless shelter such as the one described in your request is a "charitable organization" for purposes of the statutory exception.[7] Accordingly, it may accept food prepared by volunteers in private homes, without those private homes being subjected to the licensure and inspection requirements normally applicable to "restaurants" in the Commonwealth.[8]

I note, however, that the Board of Health is authorized to "issue advisory standards for the safe preparation, handling, protection, and preservation of food by the organizations exempted in" § 35.1-14.2(B).[9] Those guidelines may be beneficial for protecting public health, and, while not mandatory, reasonably should be considered by the persons who operate the kitchens in question.

Regarding application of Arlington County's Food and Food Handling Code, please be advised that the statute exempting charities from food regulations extends that exemption to "local regulations and local ordinances that govern food preparation"[10] in addition to state regulations.

Conclusion

Accordingly, it is my opinion that a private kitchen in a home or a church is not subject to food preparation and service requirements of the State Health Commissioner or Arlington County when the kitchen is used to prepare food to donate to a charitable organization, where the charitable organization is engaged in a food distribution program for the needy. However, the Board of Health may issue advisory guidelines, which reasonably should be considered by those preparing the food in question.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] See, e.g., VA. CODE ANN. §§ 35.1-2 (2014); 35.1-5 (2014); 35.1-14 (Supp. 2015); 35.1-18 (2014); 35.1-20 (2014); 35.1-22 (2014).

[2] Section 35.1-18; 35.1-20; 35.1-22.

[3] Section 35.1-1(9) (2014).

[4] Section 35.1-22. I note that the Virginia Department of Agriculture and Consumer Services ("VADACS") also has certain designated authority over food inspections in the Commonwealth, but its authority generally is limited to establishments that process or offer food for retail sale. See § 3.2-5102 (2008); 3.2-5130 (Supp. 2015); 2 VA. ADMIN. CODE § 5-585-40 (defining the terms "food establishment" and "food processing plant"). Because the private kitchens in question do not process or offer food for retail sale, they are excluded at the outset from inspection by VADACS.

[5] Section 35.1-14.2 (2014) (emphasis added).

[6] See VA. CODE ANN. § 35.1-14.2(B) (2011).

[7] See id. ("For the purposes of this subsection, 'charitable organizations' shall include nonprofit homeless shelters and hunger prevention programs.").

[8] I note, however, that nothing in this Opinion is intended to affect the lawful exercise of the State Health Commissioner's authority to address health emergencies, or the lawful exercise of VDACS' authority to enforce laws relative to the adulteration and misbranding of food. See §§ 3.2-5100; 3.2-5126; 32.1-13; 35.1-10.

[9] See VA. CODE ANN. § 35.1-14.2(C) (2011). Kitchens preparing food for donation to charitable organizations have additional protection under the Bill Emerson Good Samaritan Food Donation Act, 42 U.S.C. § 1791.

[10] VA. CODE ANN. § 35.1-14.2(B).