Last fall, state Representative Kesha Ram (D-Burlington) received an email from Jodi Whalen and Phil Merrick of August First bakery in Burlington. The couple asked Ram to help save their business. After a routine health code inspection, a state official had informed Whalen and Merrick that with only one bathroom in their café, they could legally seat just 25 people — minus the number of employees currently at work.

Fire code allows 49 seats in a space of August First’s size. Wastewater regulations cut the number to 45. So how did they come up with 25? Call it the state of Vermont’s porcelain standard.

The Department of Health once followed the plumbing rules set forth by the International Code Council, which permits 75 people per bathroom, but it has since set its own regs. Although places with just one john are strictly limited in terms of capacity, Ram notes that an eatery can go “stadium size” if it has just two toilets. Ram says she’s trying to figure out why the state departed from the ICC guidelines.

When the legislature convened in January, Ram scheduled a hearing at which Whalen and Merrick voiced their concerns. State medical examiner Steven Shapiro and Al Burns, sanitarian supervisor for the Vermont Department of Health, said they fear long lines for a public bathroom will cause diners to skip washing their hands. “So we asked, ‘Are states where they have a different ratio having a public health crisis?’” notes Ram. All involved are still hard at work researching that question.

Ram hopes she can raise sufficient interest among her fellow legislators to see the problem addressed by adoption of a new standard. State Senator Tim Ashe (P/D-Chittenden) is working on solutions. Ram says other legislators have agreed it’s random that the rules govern establishments with one bathroom, but not with two. “It’s an arbitrary rule that punishes small businesses like ours, and we’ve been working hard to change it,” says Whalen.

As a temporary measure, August First just received a permit to operate with 45 seats, thanks to a shared hallway bathroom. “We’re approved for the next year,” Whalen says.