Since Julya Shin and Steve Joo’s Korean-American pop-up restaurant Nokni was shut down by an Alameda County health inspector a couple weeks ago, the East Bay restaurant industry has responded with a mix of shock, indignation, fear, and support.
No one realized that the California Retail Food Code doesn’t address pop-up restaurants, making them illegal by omission. And restaurant owners who host pop-ups put their establishments at risk by doing so.
Allison Hopelain, co-owner of The Kebabery, which hosted Nokni, said they will no longer have pop-ups at their restaurants for fear of losing their health permit.
Other restaurant owners are grappling with their options.
“We’re trying to get legal advice about what to do,” said Adam Hatch, owner of Starline Social Club. “There are so many grey areas. Lots of people who’ve done popups here also work here in the kitchen.”
From the restaurateurs’ perspective, hosting pop-ups is a matter of community and creativity. Plus, it’s good for business.
“We started the [pop-up] program six months ago and were getting confident,” said Hillary Rose Huffard, co-owner and general manager of Rose’s Taproom. “We’ve had to rethink our entire approach to it. For us, the pop-ups were really a testament to our core values in terms of being part of the community.”
Huffard has decided to cancel three scheduled pop-ups because she doesn’t want to put her restaurant at risk. She hopes Alameda County will come up with a solution.
“When something new is working, lets figure out a way to let it continue to work instead of saying, ‘We haven’t figured out a way to regulate this, so it’s illegal,’” she said.
The pop-up firestorm puts the Alameda County Department of Environment Health in a thankless position. The department’s central objective is to keep everyone in Alameda County who eats at restaurants, food trucks, and food booths, safe. Considering the size of the region and the number of restaurants, this is a considerable feat. Currently, 28 inspectors permit about 6,750 fixed food facilities and mobile food trucks. That’s about 241 facilities per inspector, and they try to make it to each establishment twice a year.
“We do not want to have a situation where the food preparation or the food itself have not been inspected,” said Sherri Willis, spokesperson for Alameda County Public Health Department. “It may be that the facility is inspected, but the facility is permitted to a different individual, so the food itself, the menu, is not inspected,” she said. “It pops up, it pops down, and we may or may not know about it.”
Willis acknowledged that pop-up restaurants are popular and fun, but asked what if something goes wrong?
“It’s great until someone gets sick,” said Willis. “You don’t know who the chef is, you don’t know what they’re cooking, you don’t know where they’re getting the food from. So it’s super hard to track it down.”
Pop-ups have been operating unimpeded despite the law because the health department simply does not have the staff for proper enforcement. Willis estimated it would take about a half a dozen more inspectors to find and shutdown pop-ups that are currently operating.
“There simply aren’t the resources to be tracking social media and sending out inspectors to these locations,” she said. “And I doubt that any health department has those resources.”
As far as establishing a legal permitting system, health officials maintain that their hands are tied because they cannot change California law.
Some have cited San Francisco as an example of a burdensome, but established, pop-up permitting process. But according to Mary Freschet, a principal environmental health inspector in San Francisco, the San Francisco Health Department doesn’t actually issue pop-up permits. Instead, the “pop-up” must be a licensed caterer, and the “pop-up fee” of $191 is actually a site evaluation fee: Inspectors make sure the permitted host facility meets certain standards, like having hot and cold water. The health department assumes that the “pop-up” is actually preparing and cooking food in a licensed commercial kitchen and then warming it up at the host facility.
Freschet said they don’t process many of these “pop-up site evaluations.” When asked if the site evaluation is a one-time fee per location, so a pop-up could host regular events at the same space, Freschet said that situation had never come up — which is surprising considering how often pop-ups do reoccurring events at the same restaurant.
Until now, Bay Area pop-ups and health inspectors have been dancing a decade-long waltz of willful ignorance. With Nokni’s shutdown, however, that waltz has morphed into a depressing tango.