Legislating Farmers Markets—a journey in St. Louis, Missouri
Posted On: October 24, 2012
Guest Post By Deborah Henderson, Manager of the Clayton Farmer’s Market
FARMERS’ MARKET MANAGERS AND STAKEHOLDERS ENCOUNTERED PROBLEMS IN ST. LOUIS
As the new manager of the Clayton Farmer’s Market in St. Louis Co, Missouri in 2011, I enthusiastically began the job of
talking to prospective vendors about coming to the market. I was surprised when some said no because of the permitting fees charged by the St. Louis County Department of Health (DOH). They could not afford the extra cost incurred by attending another farmers’ market.
After finding out from other market managers, that they had been trying to get the “Permitting Fee System” changed for two years without results, I formally requested the assistance of the St. Louis County Council in April 2011. Little did I know when I wrote my first letter to them that I would average 10-20 hours a week for a year as the “lobbyist” (unpaid–call me crazy!) for our area’s farmers’ markets.
COST-PROHIBITIVE DOH PERMITTING FEES
Farmers’ market food service vendors and non-produce farmers were charged disproportionately higher fees for the same services than were grocery stores or restaurants, whose fees are based on volume of sales. They paid the equivalent of over $900/year or $490 per season to cook food on-site or to offer samples of their products for only 4 hours/week at each St. Louis County farmers’ market they attended.
By contrast a full service new restaurant in St. Louis is charged only $130/year for 24/7 operation and grocery stores are charged nothing extra beyond their yearly fee. Even the highest DOH fee for a grocery store bakery with $500,000 sales volume is only $451/year—sampling is included.
EXCESSIVE PERMITTING AND LICENSING FEES DISCOURAGE SMALL BUSINESS GROWTH
During season, vendors also cited poor sales due to not being able to sample their products because they could not afford the extra $490 if they wanted to offer samples—for each market–on top of the $75 they were already paying in order to simply vend.
Sampling food is crucial to making successful sales and cost-prohibitive fees discourage sampling.
After one farmer’s market vendor was shut down in 2010 after she disagreed with the fees she was charged for sampling, other vendors and farmers were afraid to confront the DOH. They didn’t want their livelihoods to be jeopardized. They could not afford to be shut down.
INCONSISTENT AND CONFUSING APPLICATION AND ENFORCEMENT OF FOOD CODES
St. Louis County is not alone in applying both Food Codes and Permitting Fees, which were originally designed for temporary events, full service restaurants or grocery stores, to farmers’ market vendors.
As the numbers of farmers markets grow, counties and municipalities are often scrambling to update their code and zoning laws—or not. In the absence of specific food codes designed for how farmers’ markets operate, many counties are applying what’s known as “Temporary Food Establishment” or “Seasonal Food Establishment” permits. These leave a lot of room for confusion and misinterpretation.
It should be noted that the actual “Food Safety” and “Sanitation Guidelines” were not disputed by FM Stakeholders in St. Louis County. Everyone was eager to both learn and apply safe food production, storage, transportation, and handling procedures because their business success depended on it.
Even though STL DOH designed temporary Farmers’ Market Guidelines and held meetings, Food Code administration and application was inconsistent from one market to the next. A vendor might be charged $50 in one district and $75 in another for the same permit. FM Stakeholders and DOH Inspectors mostly had good working relationships, but both were hampered in there execution of accurate food code applications because of inadequate or inconsistent interpretations and communications of the Food Code Law by the DOH administration.
PROBLEMS IN THE PRE-LEGISLATIVE PROCESS
The Council’s Health, Justice and Welfare Committee took on the task of hearing our concerns and recommending appropriate legislation. A formal Meeting was held on May 10 and a formal Hearing on June 28 where opinions and data were presented. The Director of the DOH did not attend the Hearing per the Committee’s request which hampered their ability to proceed. They were stumped and asked for help with the gathering of statistics and information.
In the beginning Committee Members were very cooperative and expressed enthusiastic agreement with our concerns. However, on July 13, 2012 it was reported in a Post-Dispatch newspaper article that two of St. Louis largest family owned grocery retailers, with combined retail sales above $3 BILLION annually, filed complaints with the STL Co DOH against farmers’ markets receiving adjustments in fees.
After the article was published, Committee Members became less open with us.
DISREGARD OF STATE LAW MORS 150.030: “FARMER NOT MERCHANT.”
We are fortunate to have a State Statute in Missouri which protects small farmers’ businesses by stating they are “free from license, fee or taxation from any county or municipality….he shall not be considered a merchant, provided he does not have a regular stand or place of business away from is farm…” This law dates back to 1929.
We discovered, however, that STL CO DOH continued to charge Missouri non-produce farmers fees for two years after the Director received communication from the General Counsel of the MO Department of Agriculture describing the intent of MoRs 150.030. Even after the MoDA General Counsel sent another letter (per my request) on June 7 to the STL County Council restating the State’s position on MoRs 150.030, St. Louis County disregarded State Law and continued charging Missouri farmers fees through August 2012.
It was only after more letters were written documenting the burden these fees placed on our farmers and after public pressure was applied in the newspaper and on radio that we finally won a concession in September and Mo farmers were no longer charged fees. They were also given the option of refunds.
EVIDENCE OF INFLUENCE ON THE LEGISLATIVE PROCESS AND CONTENT BY OUTSIDE INTERESTS
In January 2012 the Farmer’s Market Bill was formally introduced into the legislative process by the Director of the STL CO DOH. Yeah! Things are finally moving along—right? Well not exactly. I found out about the introduction of the legislation when a reporter phoned to ask my opinion about it.
The St. Louis County DOH sent copies of the first draft of the Bill to the large grocery stores before they sent it to Farmers’ Market Managers and Stakeholders. A copy of the Bill was forwarded to me by a grocery store representative. The St Louis County Council made no effort to contact FM Stakeholders directly regarding the introduction of the Bill.
The first draft of the Bill limited Farmers Markets and their vendors, including Missouri farmers, to operating only 7 months in a calendar year in St Louis County. It also included content which made Farmers’ Market Managers liable under the law for each individual vendor’s Food Code Compliance. This is an archaic practice which some states abandoned because a whole market would have to be shut down if just one vendor was in violation.
There was embedded language hidden in the original Bill that limited the ability of our farmers and small food entrepreneurs in selling their products. For example, in one place it said that packaged food had to be “factory sealed”. None of our vendors make their products in factories and they could have been prevented from selling their products had this wording been left in the Ordinance.
Concerned that the Bill would go to vote without Stakeholder input, I initiated a large email/phone campaign and the Council was inundated with protests. Even the Mo Dept of Ag received over seventy calls and emails. As a result we won a formal Hearing with the Council of the Whole on Feb 14, 2012.
I went to all (but one) of the Council’s weekly meetings to speak where I earned the tag-line “3 minutes Deb”, wrote a seven page analysis of the first Bill draft, and did “in the trenches” weekly monitoring and counter proposals until the Legislation was passed in early April. Other farmers’ market managers, as well as farmers and food vendors attended these meetings when important issues were presented.
We were very fortunate to receive favorable press and radio coverage. It was the only way to counter the “hidden” lobbying against us by Missouri s’ largest grocery retailers—representing $$Billions$$$ in retail grocery sales. The DOH Director considered these grocery retailers to be stakeholders. (I know this because an inner memo from the Director to the Council Members was forwarded to me by mistake).
THE FIRST FARMERS’ MARKET LEGISLATION IN THE STATE OF MISSOURI
The Final Farmer’s Market Ordinance was enacted into law in April 2012. It limits the operation of Farmers Markets along with their small food entrepreneurs and non-Missouri farmers to 120 non-consecutive days of operation in a calendar year. The 120-day limitation is a direct result of the lobbying by Missouri’s largest grocery retailers.
However, we now have a working ordinance that provides fair and appropriate DOH permitting fees based more closely on volume of sales. Vendors now pay $50-$75/market season instead of $490. Fees for attending multiple markets are capped off at $193/year instead of potentially soaring to over $900.
Missouri’s small farmers are exempt from DOH permitting fees and operating limits in St. Louis County. (The Mo Dept of Ag’s General Council assisted us again; this time to educate the Council regarding the need of our small farmer’s to sell their products year-round.) St. Louis County is now in compliance with State Law, specifically MoRs 150.030.
Food Codes as they apply to farmers markets have been clarified and are more consistently applied and enforced from market to market and vendor to vendor. This has eased our relations with inspectors.
RECOMMENDATIONS MADE TO THE STATE OF MISSOURI
During the past year while we were working on the County Farmers’ Market Legislation, the Missouri Urban Agriculture Committee was working on drafting the Urban Agriculture Act at the state level. They were interested in what happened in St. Louis County and I made the following recommendations. Other Farmers’ Market Stakeholders may find these helpful, if they’re encountering similar problems.
It’s important that States encourage the revising, clarification or maintaining (sometimes “hands-off” is the best policy) of laws, ordinances, and codes in Counties and Cities which then in turn encourage the success of this important and unique “ business ecology system” that constitutes Farmers’ Markets.
State encouragements can help by setting the tone for Counties and Municipalities: to allow year-round farmers’ market business operation; to look at the long term economic benefits of FM’s and not charge disproportionate permitting and licensing fees; to maintain the USDA’s or the State’s definition of “Farmer’s Market”; and to discourage unnecessary and business dampening regulations like mechanical refrigeration and ware-washing stations in every booth.
Regarding Food Code application, it’s important to distinguish the difference between “Food Code” requirements for “Food Safety and Sanitation” and the “Permitting Fee Structure” that is applied to the business of executing permits. They are two different issues which are easy to separate.
“Food Safety and Sanitation” applies to every food based business and most County DOH’s just need clarity and simplification in terms of application as they pertain to Farmers Markets. The “Permitting Fee Structure” is just that—a fee structure. Encourage County DOH’s to change their fee structures to fit how farmers’ markets operate and to give the small food vendors the same consideration under law when assessing fees—base them on volume of sales.
Even though the increase in farmers markets nationwide along with USDA statistics illustrate the advantages to this growing trend, more needs to be done to support and protect the economic stability, viability and growth of Farmers Markets along with the small farms and small food businesses who participate in them. Farmer’s Markets are the primary, if not only retail sales outlets for many of them.
If their economic development is hampered, discouraged and in some cases directly interfered with by cost-prohibitive permitting and licensing fees, inappropriate and out-dated regulations and ordinances and if they are lobbied against by our very own, local large grocery retailers, then their failure is encouraged rather than their success insured.
It was sad for me to find out that the locally owned family grocery stores, that made it big and that I went to growing up and as a young mother with my own family, actually lobbied against us. Although they make it a point to buy from very large Missouri and Illinois farms, which I thought was great by keeping it local on a grand scale, they practiced something else when it came to farmers markets.
I recommended that the State encourage Missouri’s large grocery retailers to be kind to their very small and younger siblings in the food industry and not apply predatory tactics to inhibit their burgeoning growth. The nation’s 7000+ Farmers’ Markets, whose total combined retail sales are less than just one of these Missouri grocery retailers—and less than 1% of all retail grocery sales in the country, are not a threat to them. There is room for everyone.
Much is said in today’s economic climate about small businesses being one of the keys to economic recovery and job growth. By supporting the business viability of Farmers Markets with appropriate codes, zoning, and ordinances, municipalities, counties and states have the opportunity to do something very simple to encourage the growth of our smallest entrepreneurs. Those are the ones who are bringing their business and farming dreams to life and incubating their future successes at our Nation’s Farmers’ Markets.
By Deborah Henderson
Clayton Farmer’s Market
8282 Forsyth Blvd.
Clayton, MO 63105