This morning I logged into my email account to find a missive from the LinkedIn Cardozo members forum. A member had posted a blog entry entitled, Pop-up Restaurants: 5 Legal Questions Every Operator Must Ask. The writer listed liquor licensing, tort liability, sales tax collection, employer/employee relationships, and lastly, “who pays for a violation?”, as things to worry about. No mention of the requirement that the facility be permitted, or that the food had to be prepared in a permitted facility. Needless to say, my interest was piqued.
How unhip! How could I not know about “pop-up restaurants”? I’ve presided over local health department cases involving food service establishments for years and I’d never come across this before. It’s something I should know about, so I started Googling.
It turns out that there are a few flavors of pop-up restaurants. Many cool, some perhaps not.
Some, like Maize, a recent three day pop-up restaurant in Pleasantville, NY, are opened in a licensed facility by chefs who are presumably trying out new, creative ideas and concepts at someone else’s facility before opening another restaurant.
Others run their restaurant out of a food truck that shows up in different locations. One learns about the location du jour only by following them on a social media outlet like Twitter or Facebook. The legitimate ones prepare their food either in a permitted brick and mortar kitchen or in their permitted food truck.
In contrast, some pop-ups appear to be set up by well-intentioned entrepreneurs dipping a toe in the water before investing big bucks in permanent space. They gain a following by announcing locations and menu items on Twitter or Facebook. To save money, some prepare their food at home rather than cooking in a permitted kitchen. From what I can glean, there are still others who pride themselves on being part of an underground movement of pop-up restaurants that don’t usually bother with permits, licenses, or insurance.
Though I could be mistaken, from my brief survey of downstate health departments, none appears to issue temporary permits, save for temporary permits for vendors tied to a special event like a street fair or park concert. Not even NYC issues permits for temporary facilities like pop-up restaurants. (Not to be confused with “Curbside Seating Platforms,” sometimes called “Seasonal Street Cafés,” or “Pop-up Cafés,” that are part of a two year NYC pilot program initiated in 2011. These are subject to very strict NYC DOT and NYC Department of Consumer Affairs guidelines.)
The situation is partially addressed by San Francisco’s Department of Public Health. Their health code has a provision for “Pop-ups and other non-traditional temporary food facilities.” Recognizing “the substantial growth in non-traditional temporary food facilities, including so called ‘pop-up’ restaurants that are open for short periods of time in undisclosed locations,” it allows permitted food facilities that temporarily host “pop-up” restaurants operated by food operators other than themselves (see, Maize, above) to submit a “Pop-up Food Event” notification. The form is on their web site as a PDF, along with operational guidelines, and is worth a look. Non-permitted facilities, as far as the law is concerned, still aren’t cool.