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Old 05-03-2021, 05:14 AM   #13
somebody shut me the fark up.

IamMadMan's Avatar
Join Date: 07-30-11
Location: Pemberton, New Jersey

You asked the question, so don't get mad at my response; I'm not trying to scare you, but you should research your State and Local laws and regulations.

This is a totally different thing than just cooking great BBQ for your family in your back yard for personal friends.

Without being incorporated or registered as a Limited Liability Company (LLC), having food service liability insurance, all the proper permits, licenses, certifications, and inspections that are required, then you are taking a huge financial risk without limits.

No one should engage in the food business without being registered as a legitimate business. Without being incorporated (or legally registered as a LLC) you and all of your assets owned by you and your family are up for grabs in a lawsuit. Incorporating separates you and your personal assets from those of the recognized corporate entity. In a lawsuit they can sue the corporation but cannot come after you personally unless you blatantly caused harm as an individual.

If you are planning on selling food or catering an event, even for a friend, you should be aware of the laws and the risks involved. By ignoring these and not investigating the legal requirements for any event, you are putting yourself at a great risk. Ignorance of the laws and regulations are not a defense, in fact it will just help to build a stronger case against you if something should go wrong. More importantly, something doesn't actually have to go wrong, one only needs to claim they got ill from your food.

First: Are you incorporated or registered as a Limited Liability Company?

Second: Will you be operating within State, Local, and Health Department regulations?
Do you have a business license, a food handlers permit, and will you prepare the food in a health department approved and inspected commercial kitchen?

Third: Do you have the proper liability insurance to cover you and the patrons?

Fourth and lastly... are you Serve-Safe Certified?

Be aware that without these qualifications and being fully covered with insurance, you are taking a huge risk, both personally and financially.

Without proper procedures and requirements there are too many risks and not enough rewards. What legal ramifications are you willing to endure should this become an issue of someone getting ill?
Trying to sneak past the "government" can lead to way too many bad things for you. This is a risk that anyone with common sense should never consider taking.

How much of your personal assets are you willing to risk due to food-borne illness issues should they occur?
Or if someone claims they became ill sometime after eating your food. If a civil suit is brought against you because of this claim, you could lose your home, your savings, everything you own, and even your investments.

It might be difficult to prove with a single case, but what if someone who handles the food in the chain accidentally contaminates something. You may have more than one case from the event. Then you have an unlicensed food handler, who is not using a state approved and inspected kitchen, and who has failed to get all the required permits, certifications, licenses, and local inspections.

It's not just the fines and penalties from the state and local authorities for operating illegally, but when you have a civil suit filed the tables turn. Just the fact that you ignored all the required permits, licenses, certifications, and inspections are stacked against you. Couple that with many states who do not elect judges, but rather politically appoint them; then you can have an inexperienced judge in law who has their own interpretation or opinion of the law to deal with. Some of these appointed judges do not know all areas of the law and will make decisions based on personal opinions.

As stated above the extreme fines and penalties imposed by the state, county, and local authorities can't be argued in a court of law, ignorance of them just isn't a feasible defense. Then you have the legal fees which can be exorbitant, even if they can't prove the case. This is why many corporations find it easier just to settle out of court than run the legal gamut.

You also have many corporations that have tried to fight a case of stupidity in court and have lost millions trying to win. Look at the case of a patron who ordered hot coffee and drank it while operating a motor vehicle. Consequently they spilled hot coffee on themselves as a direct result of their own personal action. Yet a good lawyer put the blame on the corporation, and they successfully sued for over a million dollars. Common sense does not prevail in a litigious society.

My intent is not to discourage you, but to point out the possible ramifications of this type of action without the proper "coverage", "licenses", "certifications" and "permits".

Some think they have a legal defense because:

Some would say that they are doing this as a hired hand and they should be covered under the companies / organizations insurance policy. Not true, unless you are getting a weekly paycheck and they are paying into workman's compensation, disability insurance, state and federal taxes for you, then you are not an employee. If you are paying these taxes you could be considered an employee, but you could also be held personally liable as a co-defendant because you used your personal equipment to cook the food.

Secondly if you are using your own equipment to cook with, many states view this as a sub-contractor status where YOU are responsible for all of your own permits, licenses, and liability insurance. So again, you have legal fees to defend a lawsuit, coupled with fines and penalties imposed by the state, county, and local authorities.

Most importantly, if you do this for a friend you trust, they may not sue you, but then you have to worry about the many others who will be in attendance. Some might be looking for an easy way to make a quick buck. How lucky do you feel?

But yet others will claim being free from everything because they are selling food by the tray.
However unless you are legally licensed to sell cold / frozen foods, then you have lost control of the food until it was served;

You are responsible to properly prepare, maintain, and/or serve food fit for human consumption.
You are responsible to properly take the temperature of the food at the time of service.
You are responsible to ensure all persons were wearing gloves, hats, nets, ect while prepping, cooking, and serving the food.

It may be a one in a million case that someone becomes ill, but we live in a litigious society today. People make false claims all the time in an effort to sue for personal gain. If you are prepared to risk it ALL then go ahead. Otherwise walk away until you do the necessary diligence to cover yourself.

Below is an example where a caterer sold pans of food to a client for an event and still got sued simply because they lost control over the food that was served later that day. It may not have even been their food that made the guests sick, because some guests also prepared food and brought it to the event. In a civil suit you do not have to prove "beyond the preponderance of a doubt", only that a slight possibility could exist.

If you want to go into business then you should take the appropriate steps. If not the be prepared to accept all possible legal and financial consequences.

As far as food preparation;
The kitchen in which food is prepared is subject to the Uniform Building Construction Code. To my knowledge, all 50 states use this code and even expand further upon it with even more local regulations. In general, the Uniform Building Code states: any kitchen that is used to prepare food that is not served immediately on premises must be to current local health codes. Also be aware that all parts of the building that has access to the kitchen must also meet those codes, not just the kitchen area.

A few other states allow for certain uses if your "APPROVED" kitchen is separate from the home, where you cannot pass from the approved kitchen into the home. In other words, you must completely leave the kitchen structure (pass outside) to access the the house, then you could possibly have that kitchen approved. This is not always the case, it is dependent upon your local authorities.

Also note that BBQ sold to the public goes under different rules than BBQ that is sold to a retailer that is going to be resold. Also note to sell cold / frozen foods require a completely differnt set of regulations, inspections and licences. If you are selling to a retailer who is then reselling the food, you need to meet USDA FSIS regulations and have to have a approved USDA facility which will subject to USDA sampling.

Keep in mind that is someone claims they got ill, your friend probably won't sue you, but a good lawyer can trace the chain of accountability back to you. Think of Clint Eastwood in "Dirty Harry" - How Luck do You Feel Today? Once they pull the trigger you are basically "dead in the water" with no escape.
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