DRAFT 11/2/15 Halfmann

Fish Fry Market Licensing Guidance

A traditional fish fry market with food service or sometimes referred to as ‘you buy we fry’ model is the purchase of fresh fish then the consumer taking the purchased food to another preparation area of the store and paying a service fee to the firm to fry or prepare the fresh fish into a meal. These firms also sell packaged groceries in a retail area.

LHD and MDARD both currently have a significant amount of these types of facilities licensed in Michigan. To help reduce confusion regarding licensing of these facilities, please use the following guidance.

How MDARD Determines Licensing Jurisdiction:

All food facilities in Michigan that handle food in any capacity are subject to the Food Law. MDARD regulates food facilities which predominantly sell prepackaged food, where the food is intended for later consumption. MDARD delegates regulatory responsibility to Local Health Departments for firms that predominantly sell food for immediate consumption or food service establishments. The Food Law delineates food service establishments from retail grocery:

289.3105(2) If a food service establishment is a part of a retail grocery or food processor and the retail grocery and food processor are the predominant part of the food business as determined by the department, authority and responsibility pertaining to that establishment are not delegated under subsection (1).

  • (3) If a retail grocery or food processor is a part of a food service establishment but the food service establishment is the predominant part of the food business as determined by the department, the authority and responsibility for the entire establishment are delegated under subsection (1).

A retail grocery is further defined in the Food Law in 289.1111(d)means an operation that sells or offers to sell food to consumers for off-premises consumption. Food for off-premises consumption does not include take-out food intended for immediate consumption.

To be licensed under MDARD, a fish market as described above, according to the Food Law, would have to sell more retail groceries than take-out food for immediate consumption.

New Facility - Factors When Considering Licensing Jurisdiction of Fish Markets:

Food Service Menu – The menu should be considered in making a decision about jurisdiction. An extensive menu that may be printed or a board in the facility with food service menu items may indicate that the facility may do more business in food service

Sales from prepackaged food – For a fish fry market to be licensed under MDARD, a higher amount of sales would be anticipated by the regulator in packaged retail groceries. Any fish or meat purchased in a fresh state but then prepared at the market would not be considered retail grocery, it would be considered food service.

Significance of Food Service Equipment – If the facility is proposing a significant amount of food service equipment such as fryers, grills, ovens and food prep tables, it would be reasonable to determine that the direction of business type is more in line with a food service establishment than a retail grocery.

There have been occasions that the ownership requests to have MDARD review financial records that may show predominance in sales. In these situations, the ownership should be apprised that MDARD may share these records with other State agencies including Treasury.

When a new establishment applies:

1)Request a written business plan, full menu

2)If the preliminary review of the menu and business plan reveals a predominately food service establishment, the plan reviewer will contact the LHD plan reviewer and to collaborate and agree that the firm should be referred to LHD for plan review.

3)The plan reviewer will send a letter to the establishment, LHD, area inspector and their supervisor, advising of the joint decision for proper jurisdiction.

4)All discussions and decisions should be in writing and records will be shared with jurisdictional partner.

Fish Fry Market Firms Currently Licensed

Some facilities are already licensed by the LHD when the firm then applies for a MDARD license. In these instances:

1)The local health department (LHD) needs to be contacted by the area inspector or the plan reviewer that receives the application or plans for review.

2)The firm needs to be advised that the LHD needs to give them a written letter that their firm no longer falls under their jurisdiction.

3)Request a written summary of changes for the business plan

MDARD should not complete a plan review until there is documented proof that the operation has changed.

Existing Food Service Operations previously licensed by LHD sometimes changeownership and may apply to MDARD as a Retail Establishment. In these instances:

1)The LHD still has jurisdiction of the operation and would need to provide a release letter to MDARD, if the operation has shown to have changed predominance.

2)The applicant will be required to provide written proof of ownership change.

3)In situations that it is not clear, if the firm has changed their predominate operations, the area inspector will contact the regional supervisor and request to set up a joint inspection of the operation with the LHD inspector. Upon a review of the operation and agreement of jurisdiction, the lead agency will draft a special report to the applicant and advise of the decision and copy the other agency. The firm will be notified in the letter that if the firm changes the operation without prior approval of the licensing agency that the license will be limited and enforcement action will be taken in conjunction with the Food Law.