Request By:
Col. Eben C. Henson
Pioneer Playhouse
U.S. Route 150
Danville, Kentucky 40422
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Nancy M. Collins, Assistant Attorney General
This is in response to your letter in which you question whether the Pioneer Playhouse, a nonprofit private educational institution, must obtain a food service permit from the Department for Human Resources in order the operate its cafeteria. This cafeteria is primarily for use by the students; however, a ticketholder to the play may, for an additional fee, purchase a buffet meal consisting of chicken, corn on the cob, baked beans, drink and dessert. The buffet is only open ten weeks out of the year, from 7:30 p.m. to 8:00 p.m. You do not advertise as a restaurant and feed only students and patrons with a theater ticket.
A "food service establishment" is defined in KRS 219.011 as
"any fixed or mobile commercial establishment that engages in the preparation and serving of ready-to-eat foods in portions to the consumer, including, but not limited to: restaurants; coffee shops; cafeterias; short-order cafes; luncheonettes; grills; tearooms; sandwich shops; soda fountains; taverns; bars; cocktail lounges; nightclubs; roadside stands; industrial feeding establishments; private, public or nonprofit organizations or institutions routinely serving food; catering kitchens; commissaries; or similar places in which food is prepared for sale or service on the premises or elsewhere with or without charge. It does not include food vending machines or establishments serving beverages only in single service or original containers."
Although the Pioneer Playhouse only operates approximately ten weeks out of the year, it appears to meet the definition of a food service establishment found in KRS 219.011(3) since food is prepared for sale or service on its premises while it is in operation.
You state that the Pioneer Playhouse is a nonprofit educational institution incorporated as the Pioneer School of Drama. Thus, the Playhouse is a "person" for purposes of the Kentucky Hotel and Food Service Establishment Act of 1972. See KRS 219.011(5).
KRS 219.021(1) states that "No person shall operate a hotel or food service establishment without first having obtained a permit to operate from the department. . . ." It is apparent from the foregoing statutes that the Pioneer Playhouse must obtain a food service permit from the Department for Human Resources unless it is within the scope of the exemptions found in KRS 219.021(4):
"Private, parochial, and public school cafeterias or lunchroom facilities through the 12th grade and all facilities operated by the department for human resources, bureau of corrections and operated or licensed by the department for human resources shall be exempt from the payment of fees, but shall comply with all other provisions of KRS 219.011 to 219.081 and the state food service code."
While the exemption does apply to private school cafeterias, it only applies to those private schools through the 12th grade. Although the Pioneer Playhouse may be considered a private school, it clearly operates above what is commonly referred to as the 12th grade and is not exempt from paying the requisite permit fees to the Department for Human Resources. You will note that even the exempt establishments must comply with the provisions of KRS 219.011 to 219.081 and the state food service code.
In your letter, you mention that this issue first presented itself approximately fifteen years ago and this office determined that the Pioneer Playhouse was not considered a restaurant under the statute then in effect. A thorough search of our files has revealed no opinion on this issue. Additionally, you will note that KRS 219.011 and 219.021 were enacted in 1972. Any communication prior to this time would be inapplicable to the present statutes.