After Oakland pop-up restaurant Nokni was shut down Tuesday, Aug. 21, by an Alameda County food inspector, Nokni chef Steve Joo was shocked, as were many others in the East Bay food scene. “A lot of friends in the East Bay and other places [shared] a mixture of surprise and sympathy,” he said when reached by phone this week. “We thought we were above board.” That night, the pop-up was operating out of The Kebabery, a small-scale restaurant in the Longfellow neighborhood of North Oakland owned by the founders of East Bay favorite Camino. Officially, the Kebabery isn’t open on Tuesday nights, which was what first alerted the food inspector who happened to walk by that something was amiss, according to Joo. Forty-five minutes into service, he said, the inspector walked in and asked front of room staff what was going on. When told that a pop-up restaurant was operating in the space, she wrote an inspection report describing the situation and declaring on the official form in capital letters that “pop-ups are illegal” and to “cease and desist this pop-up immediately,” threatening that the Kebabery could lose its permit to operate. Joo and Nokni partner, Julya Shin, immediately shut down the event to avoid problems, which meant they lost $500 on food that they didn’t sell and labor costs. “The bottom line is we were operating under a false set of assumptions,” said Joo, who has operated more than 20 pop-ups, mostly in the East Bay, and was chef de cuisine at the now-closed Michelin-starred, St. Helena-based restaurant Terra. Shin was formerly chef de cuisine at Pizzaiolo and Penrose in Oakland. “My partner and I have a lot of experience in restaurants. We have ServSafe food handling certificates, [were] operating in a licensed, legally permitted kitchen space, we pay taxes on all of our sales, that’s been the standard model for pop-ups all around and we just assumed that was OK.” Moving forward, Joo says that he and Shin are figuring out what comes next. “We’ve gotten a lot of folks reaching out to us from San Francisco where there is technically a pop-up permit, we are thinking of reaching out to those guys,” he said. “We were [also] looking for a brick-and-mortar place, but now are more proactive in that effort.” The closure of Nokni has raised questions about what is technically legal and illegal in the fast-moving and fast-changing Bay Area food scene. Many up-and-coming chefs will pop-up for a night to test out a new restaurant idea or to gain interest and a following without the massive investment and risk associated with opening a brick and mortar. “We’re talking about hundreds of thousands of dollars and knowing people who want to invest in you,” said one East Bay chef, who asked not to be named in this article, and who operated his restaurant as a pop-up for months before finally getting permitted. “[Pop-ups] are an unconventional way to raise money. This underground food scene has been happening for quite a while and now it’s becoming mainstream.”
According to a “Pop-Up Food Operations-Frequently Asked Questions” document provided by the Alameda County Department of Environmental Health, which oversees permitting for restaurants and food service in the county, including in Oakland, pop-ups are illegal because permits for food establishments are valid not just for a particular location, but for a particular person and are not transferable. When a new chef or chefs come in and operate in an existing restaurant without their own permit to do so, they are breaking the law. According to the department’s reading of the California Retail Food Code, the state law that governs California’s retail food industry, pop-ups are illegal, as are guest chefs working temporarily out of a permitted restaurant. To be legal, the chef must be an employee of the permitted restaurant. Penalties for violating these laws, according to Alameda County, include closure, impounding of equipment, misdemeanor charges including fines and imprisonment, and potential suspension or revocation of the hosting restaurant’s operating permit. One claim that came up in news reports over the closing of Nokni was that daily menu changes, common in high-end restaurants, might require new inspections every day. According to Alameda County, the only time when a menu change would require a new inspection would be if a restaurant suddenly offered a completely different type of cuisine or food where new equipment might be required, such as installing a fish tank to house live seafood. Daily specials do not require new inspections, according to the county environmental division’s FAQ document. To legally operate, would-be pop-up operators in Alameda County have the following options: a catering registration (costing $555 plus a $207 application fee), which allows them to prepare pre-ordered food at a commercially approved kitchen and to serve at private events; a temporary food facility permit (costing anywhere from $188 to $333, depending on length of operation), where food is prepared in an approved commercial kitchen or booth and sold at a specific event; or online sales (costing from $998 to $1,325 plus a $207 one-time application fee). Finally, state law allows for certain types of foods, like granola, dried pasta or spices, to be prepared in home kitchens to be sold to the public as Cottage Food Operations, which requires vendors to pay $190 or $450, depending on the size of operation. The case is different in San Francisco where there is a formal approval process for pop-up restaurants. The approval process allows chefs who have a caterer’s permit to pay $191 and apply to operate a pop-up in a specific permitted location and for a specific period of time. As part of the application, they must submit evidence of food safety certification (known as ServSafe), a menu, a floor plan with information on cooking equipment to be used, and food safety and set-up plans. If and when the pop-up moves to a new location or operates at a different time than permitted, a new application must be submitted as well as the payment of another $191 fee. “[W]e developed a process that gives aspiring businesses a chance to test their menu and get a following, and hopefully open a brick and mortar at some point,” said Mary Freschett, a spokeswoman for the San Francisco Department of Public Health. The program is only a few months old and is based on San Diego County’s regulatory approval process for pop-ups.
At this time, according to Chakko, Berkeley does not have a permitting process for pop-ups, although according to a written statement the city is looking into “how other jurisdictions such as San Francisco handle these requests.” It does, however, allow guest chefs to operate at established restaurants where “the owner/permittee of that facility assumes full responsibility and accountability for the guest chef” meaning that any health problem or violation caused by a guest chef would ultimately be the problem of the owner, not the guest chef. Unlike Oakland and other cities in Alameda County, Berkeley has its own health division and issues permits for restaurants within its own borders even though it is governed by county rules and regulations in other areas, according to city spokesman Matthai Chakko. “Long Beach, Vernon and Pasadena are the only other cities that issue their own permits to operate to restaurants [in California],” he said.
At this point, disagreement between regulatory agencies and jurisdictions over how to handle pop-up restaurants are confusing many, but they will remain unless the state specifically tells local governments how to interpret the law, according to UC Hastings College of the Law professor and Berkeley-resident David Levine. “These regulatory agencies are reacting to something new,” he said, comparing pop-up restaurants and their pressure on existing regulatory agencies to Uber’s and Lyft’s impact on car insurance and taxi regulation. “It’s partly laws catching up with new ways of doing business. What would be helpful is for the state to issue guidance for counties and departments of environmental health.”
Another option, according to Levine, is if someone sues Alameda County for not allowing pop-ups, pointing to the fact that across the Bay Bridge they appear to be — at least for now — legal.