Override attempt fails to legalize street sales of homecooked foods

PHOENIX — Sales of tamales and tortillas cooked in unregulated home kitchens will remain illegal in Arizona.

Ditto those of homemade hot dogs, hamburgers, ribs and other cooked foods.

A bid to override Gov. Katie Hobbs’ veto of deregulation of “cottage foods’’ fell six votes short Tuesday as it gained the backing of 35 lawmakers in the House. It needed 40 votes — two thirds of the 60-member House — to succeed.

That vote is a significant departure from the House’s original 45-11 vote to approve the measure less than two weeks earlier. What changed is that 12 Democrats who supported the original measure declined to override the governor from their political party.

Tuesday’s override failure in the House, preempted the Senate, which had approved the bill on a 26-4 margin, from considering the override.

It remains to be seen whether some version of the measure might be resurrected.

In her veto message, Hobbs said she is open to some changes in law that would legalize the practice by many cooks, particularly in the Hispanic community, of making foods at home and selling them in parking lots.

But Rep. Alma Hernandez, D-Tucson, who worked with Republicans on the unsuccessful override, said at a news conference prior to Tuesday’s vote that some of what she has heard from Hobbs is simply not acceptable.

“I will not put a cap on how much people can sell,’’ she said. Hernandez also said she will not support allowing unscheduled inspections of homeowners’ kitchens by state health officials.

That was never part of what Hobbs wanted, said the governor’s press aide Christian Slater. But he would not provide a list of what needs to be in the bill to get her signature.

Hernandez called out Hobbs for talking in her veto message about the dangers of “rodent or insect infestation.’’

“That is offensive,’’ Hernandez said. “I certainly do not accept or am OK with anyone saying or comparing my community of homes (as) rodent and insect infested. And for those who are OK with that, that’s on you.’’

Sen. T.J. Shope, R-Coolidge, whose mother and grandmother are Mexican immigrants, took it a step farther.

“Not only was the veto outrageous, but to continue to push racist tropes of homes riddled with insect infestation or rodent infestation, it will just not be tolerated in the year 2023,’’ he said.

Slater would not comment on the wording in the veto, in which Hobbs also said, “This bill would significantly increase the risk of food-borne illness by expanding the ability of cottage food vendors to sell high-risk foods.”

‘Don’t let this bill fool you’

One of the Democrats switching their votes to uphold the veto was Rep. Cesar Aguilar.

During Tuesday’s vote, he said anyone driving through his district in west central Phoenix would see people selling tamales and burritos on the street.

“But this bill does not actually solve that problem,’’ Aguilar said.

He said he supported the measure before he had conversations with constituents and with an organizer of Mexican food vendors who runs a cooperative.

The real key to his vote switch, Aguilar said, is that this legislation was not introduced by Hispanic lawmakers but by Gilbert Republican Rep. Travis Grantham. More to the point, much of what was in the measure, House Bill 2509, was copied from model legislation crafted by the American Legislative Exchange Council, Aguilar said.

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That group, funded largely by corporate interests, serves as a clearinghouse of sorts for proposed changes in state laws across the nation — changes usually sponsored by Republicans — that can wind up being formally adopted by the Legislature here.

“Don’t let this bill fool you,’’ Aguilar said. “This is an ALEC bill that is being used to pander to the Latino community.’’

The veto override defeat in the House meant there was no opportunity for the Senate, which had approved HB2509 by a 26-4 margin, to see if there were the necessary 20 votes there for an override.

But there, too, some Democrats said they changed their minds after the governor’s veto.

Sen. Anna Hernandez, D-Phoenix, said on taking a closer look she realized the measure being pushed here was different — and laxer — than similar proposals adopted in other states. She said it is wrong to see the issue as simply a matter of some people being able to sell homemade tamales.

“This proposal applies to the sale of any foods that include meat and dairy, which would apply to far more situations with significantly higher health and safety concerns,’’ Anna Hernandez said.

She also said this should not have become a “binary choice’’ between either HB2509 or the current unregulated and illegal sales. She said negotiations are needed with the state health department and others “so we can find a better solution that works for everyone.’’

One thing she wants is for those preparing foods at home to receive “basic food safety and handling instructions and requiring labels to include content information.’’

HB2509 did, in fact, have some of that.

It would have required whoever was preparing the product to complete a food handler training course and register with the health department.

Foods would have had to be packaged at home with the name and registration number of the preparer, a list of ingredients and a statement that “this product was produced in a home kitchen that may process common food’ allergens and is not subject to public inspection.’’

People ‘living in the shadows … counting on us’

House Majority Leader Teresa Martinez, a Casa Grande Republican, said she was willing to work with Hobbs to come up with something acceptable to her. But there are limits, she said.

“We’re not going to have people go into people’s kitchens like the Gestapo at random times,’’ she said.

Slater responded, “We do not think comparisons to Nazi Germany are appropriate here.”

Tuesday’s vote came amid angry comments from some Democratic lawmakers who felt they were being pressured to not allow Hobbs to be the first Arizona governor since 1981 to have a veto overridden.

“The people of District 21 elected me to be here, not the Ninth Floor,’’ said Rep. Consuelo Hernandez of Tucson, referring to the location of the Governor’s Office. She chided Democratic colleagues for choosing to back the governor over what she said were the interests of their constituents.

“I want you to sit or stand in front of the people that are selling in the parking lots, in the restaurants, and you to tell them to their face that that is not an important issue in Arizona,’’ Consuelo Hernandez said.

“I don’t know where a lot of you are hanging out or living,’’ she continued. “But a lot of the people that are living in the shadows are the ones counting on us today.’’

Rep. Melody Hernandez, D-Tempe, who voted for the original bill, told colleagues she came to the Capitol prepared to support Hobbs and oppose the override, particularly as she is the House minority whip and expected to support party positions. That also was true, she said, even after she spent hours on the phone with constituents, explaining the issue and finding that every one of those she talked with supported the bill.

“But I just underwent a ridiculous amount of bullying,’’ Melody Hernandez said, announcing she was voting for the override even if other Democratic lawmakers vote her out of leadership.