Item 2.1 - Ordinance Regulating Sidewalk Vendors in Compliance with CA Senate Bill 946W"y City of Poway
COUNCIL AGENDA REPORT
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DATE: March 19, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Alan Fenstermacher, City Attorney
CONTACT: Alan Fenstermacher, City Attorney
afenstermacherkil.Doway.ora
APPROVED
IM
APPROVED AS AMENDED
❑
(SEE MINUTES)
DENIED
❑
REMOVED
❑
CONTINUED
RESOLUTION NO.
SUBJECT: Ordinance Regulating Sidewalk Vendors in Compliance with
California Senate Bill 946
Summary:
On September 17, 2018, Governor Jerry Brown signed Senate Bill (SB) 946 (effective on
January 1, 2019), which establishes statewide regulations for vending in the public right-of-way
and parks. As is the case with the regulation of accessory dwelling units (ADUs), local
jurisdictions that wish to regulate sidewalk vending are required to adopt a program with rules
and regulations consistent with state law. Portions of the Poway Municipal Code (PMC) are
presently in conflict with the requirements of SB 946 (codified as Government Code section
51036 et seq.), meaning that if the City Council wishes to regulate sidewalk vending, the City's
existing rules and regulations must be revised. If the City does nothing, sidewalk vendors would
be permitted in the manner set forth by state law, without any further requirements, restrictions
or regulations.
Accordingly, staff has drafted the attached ordinance (Attachment A) establishing a program to
permit and regulate sidewalk vendors in compliance with state law while also allowing the City
to retain as much control as possible to protect the community's quality of life. The Ordinance
would add a new Chapter 5.22 (Regulation of Sidewalk Vendors) to the PMC and amend section
9.48.240(A). A resolution establishing fees for sidewalk vendor permits and appeals relating to
the same will be brought back to the City Council at its April 2, 2019 meeting.
Recommended Action:
It is recommended that the City Council introduce the Ordinance for first reading.
Discussion:
The draft ordinance establishes PMC Chapter 5.22 for the regulation of sidewalk vending in a
manner that is consistent with state law. While allowing more sidewalk vending than is
currently permitted, the proposed Ordinance recognizes the importance of regulation and
enforcement of sidewalk vendor activities to promote the health, safety, and welfare of the
public.
As discussed in more detail herein, the City's proposed program includes regulations that are
necessary to ensure sidewalk vendors do not interfere with the performance of law enforcement,
firefighters, and emergency medical personnel services, the flow of pedestrian or vehicle traffic,
and permitted special events. The Ordinance also ensures reasonable access for the use and
maintenance of sidewalks, pathways, poles, posts, traffic signs or signals, hydrants, restrooms,
1 of 26 March 19, 2019 Item # 2 •,
Ordinance Regulating Sidewalk Vendors
March 19, 2019
Page 2
trash receptacles, firefighting apparatus, mailboxes, reduces the City's exposure to personal
injury or property damage claims, ensures sidewalk vending activities only occur in locations
where such vending activities would not restrict sidewalk and pathway access and enjoyment to
individuals with disabilities, and maintains public access to recreation, including limiting
interference with the public's use and enjoyment of the City's parks.
The following provides an overview of key rules and regulations that would be put in place by
the proposed Ordinance, if adopted:
All Sidewalk Vendors are Required to Obtain a Permit
Government Code section 51038(c)(4) allows the City to require sidewalk vendors to obtain
permits, which the proposed Ordinance incorporates by establishing a new permit for that
purpose. As defined by the proposed Ordinance, permitted sidewalk vendors do not include
individuals with motorized or pedal driven carts.
The proposed permitting program enables the City to effectively regulate sidewalk vendors
including requiring a public health permit for food sales, an adequate level of insurance
coverage, and a background check), and would help to ensure sidewalk vendors are complying
equally with the rules and regulations set forth by the Ordinance.
City staff will issue a permit to an individual when the requirements set forth in PMC
sections 5.22.030 and 5.22.040 to obtain said permit are met. At least a portion of the permit
administration costs will be recovered through the application and permit fee, which will be
established by resolution at a later City Council meeting.
Limitation on Hours of Operation
Government Code section 51038(c)(1) allows a local authority to place limitations on hours of
operation that are not unduly restrictive. In nonresidential areas, any limitations on the hours of
operation for sidewalk vending shall not be more restrictive than any limitations imposed on
other businesses or uses on the same street. Therefore, the proposed program in nonresidential
areas would limit hours of operation for sidewalk vending from 7 a.m. to 10 p.m., daily, which is
consistent with most business operations throughout the City. In parks, sidewalk vending
activities will end at 10:00 p.m. or one hour before park closure, whichever is earlier.
In residential areas, all stationary sidewalk vending is prohibited at all times. However, roaming
sidewalk vending activity is only prohibited between the hours of 6:00 p.m. or sunset, whichever
is earlier, and 9:00 a.m. of the following day, Monday through Saturday, inclusive, and all day
on Sundays and federal holidays. These areas tend to be more sensitive to noise and traffic
impacts and, therefore, warrant a smaller operational window. State law does not allow a
complete prohibition of roaming sidewalk vendors in residential areas.
Location and Distance Restrictions
Government Code section 51038(b)(1) prohibits a local authority from requiring a vendor to
operate in specific parts of the public right-of-way, except when that restriction is directly related
to objective health, safety, or welfare concerns.
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Ordinance Regulating Sidewalk Vendors
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Page 3
The City ensures the safety of over 45,000 residents and many visitors annually. These people
frequent several unique locations and rely heavily on safely utilizing the public right-of-way in
these areas. Obstructions of the use of the right-of-way could pose a health and safety concern.
The City has a unique physical setting with many visual, recreational, and environmental
resources that has influenced the type and form of land uses within the community.
Accordingly, the proposed Ordinance contains numerous locational, distance and other
restrictions to ensure public health, safety and welfare, such as the following:
No sidewalk vending activities are permitted within:
0 12 inches of a curb;
0 15 feet from the entrance or exit to any building;
0 200 feet of an area designated for a temporary special permit issued by the City,
a swap meet or farmers' market;
0 50 feet of another sidewalk vendor;
0 100 feet of a school, place of worship or child day-care facility;
o On any public property that does not meet the definition of a sidewalk or pathway
including without limitation any alley, courtyard, street, roadway or parking lot;
o Any portion of the Blue Sky Ecological Reserve, the Iron Mountain trailhead, or
any unpaved trail
Vendors must only operate on sidewalks eight feet wide or larger, and maintain a
minimum of a four -foot clear accessible path on any sidewalk or pedestrian path where
they are operating;
Vendors are not permitted to transact with anyone in moving or illegally parked vehicles;
Vendors are required to maintain clean and sanitary conditions;
Vendors cannot leave their equipment unattended or stored on public property; and
Vendors cannot sell food or merchandise in parks where the City has an exclusive
concessions agreement in place.
Enforcement, Penalties, and Appeals
Finally, Government Code section 51039 outlines punitive limitations on sidewalk vendors for
violating parameters of the City's program.
In accordance therewith, the proposed Ordinance encourages efficient enforcement through its
operating conditions, such as requiring conspicuous display of a sidewalk vendor permit and
allowing certain City officials to inspect the operation at all times.
Violations of the Ordinance would be enforced through administrative fines and potential
revocation of an issued permit. The Ordinance also includes an appeals framework, which
provides due process for individuals who disagree with an issued administrative citation or who
desire to contest permit revocation or denial.
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Ordinance Regulating Sidewalk Vendors
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Page 4
Environmental Review:
The adoption of the. proposed Ordinance is not a "project" that is subject to CEQA review
because it will not result in direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment.
Fiscal Impact:
The City may incur costs associated with additional enforcement of compliance with the
proposed sidewalk vendor program. Costs associated with issuance and administration of a
sidewalk vendor permit are proposed to be at least partially recovered through a proposed
application and permit fee, which will be brought for City Council approval at its April 2, 2019
meeting.
Public Notification:
None.
Attachments:
Attachment A — Ordinance Regulating Sidewalk Vendors
Attachment B — Senate Bill 946
Reviewed/Approved By: Reviewed By: Approved By:
7 .x2 6%11 Gu
Wendy Kaserman Aran Fenstermacher Tina M. White
Assistant City Manager City Attorney City Manager
4 of 26 March 19, 2019 Item # 11 1 11
ORDINANCE NO. 19.XXX
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA,
ADDING CHAPTER 5.22 TO THE POWAY MUNICIPAL CODE
AND AMENDING SECTION 9.48.240(A) OF THE POWAY
MUNICIPAL CODE RELATING TO REGULATION OF STREET
VENDORS.
WHEREAS, on September 17, 2018, California Governor Edmund Gerald Brown signed
Senate Bill 946 (“SB 946”) into law, which adds Chapter 6.2 (commencing with Section 51036) to
Part 1 of Division 1 of Title 5 of the California Government Code to regulate sidewalk vendors
throughout the state, including within the City of Poway;
WHEREAS, SB 946 took effect January 1, 2019, and limits the authority of cities and
counties in the state to regulate sidewalk vendors, except as otherwise specifically and expressly
provided;
WHEREAS, existing provisions of the Poway Municipal Code prohibit or limit the activities
of sidewalk vendors in a manner that may be in conflict with the provisions of SB 946;
WHEREAS, the City Council adopts this Ordinance in accordance with the authority
granted by SB 946;
WHEREAS, the City Council declares that the regulations enacted by this Ordinance are
intended to promote and protect the health, safety and welfare of the City’s residents, businesses,
and visitors and are in furtherance of the City’s police powers;
WHEREAS, the City Council further declares that the provisions of this Ordinance are
intended to regulate the time, place, and manner of sidewalk vending directly relating to public
health, safety, and welfare objectives and concerns;
WHEREAS, the City Council further declares that the regulations enacted by this
Ordinance, including, but not limited to those governing minimum sidewalk widths, sidewalk
vending receptacle sizes, distance requirements, and food and merchandise storage, are
intended and necessary to ensure compliance with the federal Americans with Disabilities Act of
1990 (Public Law 101-336) and other disability access standards;
WHEREAS, the City Council further declares that the regulations enacted by this
Ordinance are intended and necessary to ensure the public’s use and enjoyment of natural
resources and recreational opportunities;
WHEREAS, the City Council further declares that the regulations enacted by this
Ordinance are intended and necessary to protect the natural resources and scenic and natural
character of the City’s parks and to prevent an undue concentration of commercial activity that
unreasonably interferes with the scenic and natural character of City parks; and
WHEREAS, the City Council further declares that the regulations enacted by this
Ordinance are intended and necessary to ensure public access to and enjoyment of locations that
are popular tourist and regional destinations with unusually high pedestrian, bicyclist, and
vehicular traffic volumes, to protect the public from injury, and to minimize any interference and
allow a clear exit path from commercial businesses to exit onto public sidewalks; and
5 of 26 Attachment A March 19, 2019, Item # 2.1
Ordinance No. 19.xxx
Page 2 of 15
WHEREAS, the City Council desires to retain the ability for local enforcement of sidewalk
vendor regulations, including the imposition of fines for violations, to the extent consistent with
State law;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORGAIN
AS FOLLOWS:
SECTION 1: Chapter 5.22, entitled “Regulation of Sidewalk Vendors,” is hereby added to
the Poway Municipal Code to read in its entirety as follows:
Chapter 5.22
Regulation of Sidewalk Vendors
Sections:
5.22.010 Purpose
5.22.020 Definitions
5.22.030 Permit required
5.22.040 Issuance of permit
5.22.050 Operating conditions
5.22.060 Prohibited activities and locations
5.22.070 Penalties
5.22.080 Appeals
5.22.010 Purpose
a) The purpose of this chapter is to establish a permitting and regulatory program for
sidewalk vendors that complies with Senate Bill 946 (Chapter 459, Statutes 2018), codified as
Government Code section 51036 et seq. The provisions of this chapter allow the City to
encourage small business activities by removing total prohibitions on portable food stands and
certain forms of solicitation while still permitting regulation and enforcement of unpermitted
sidewalk vending activities to protect the public’s health, safety and welfare.
b) The City Council hereby finds that to promote the public’s health, safety and
welfare, restrictions on sidewalk vending are necessary to:
1. Ensure no unreasonable interference with the flow of pedestrian or
vehicular traffic including ingress into, or egress from, any residence, public building, or place of
business, or from the street to the sidewalk by persons exiting or entering parked or standing
vehicles;
2. Provide reasonable access for the use and maintenance of sidewalks,
pathways, poles, posts, traffic signs or signals, hydrants, firefighting apparatus, mailboxes, as well
as access to locations used for public transportation services;
3. Reduce exposure to the City for personal injury or property damage claims
and litigation; and
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Ordinance No. 19.xxx
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4. Ensure sidewalk vending activities occur only in locations where such
activities would not restrict sidewalk and pathway access, including impeding access by
individuals with disabilities.
5.22.020 Definitions
As used in this chapter, the following terms and phrases shall have the meaning ascribed
to them in this part, unless the context in which they are used clearly requires otherwise. If a term
or phrase is not defined in this part, or elsewhere in this code, the most common dictionary
definition is presumed to be correct.
a) “Alcoholic beverage” shall have the same meaning as defined in
Section 9.54.020(B) of this code, or any successor section.
b) “Cannabis” shall mean all parts of the plant Cannabis sativa Linnaeus, Cannabis
indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude
or purified, extracted from any part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin. “Cannabis” also means the
separated resin, whether crude or purified, obtained from marijuana. “Cannabis” also means
cannabis products,” “cannabis accessories,” as defined by Sections 11018.1 and 11018.2 of the
California Health and Safety Code, as may be amended from time to time. The term “cannabis”
shall also have the same meaning as set forth in Section 19300.5(f) of the California Business
and Professions Code, as may be amended from time to time.
c) “Certified farmers’ market” means a location operated in accordance with
Chapter 10.5 (commencing with Section 47000) of Division 17 of the Food and Agricultural Code
and any regulations adopted pursuant to that chapter, or any successor chapter.
d) “Curb face” means the vertical or sloping surface on the roadway side of the curb.
e) “Emergency vehicle access” means the roadway path or other surface that
provides police or fire safety vehicular access from the dispatched point of origin to a facility,
building, parcel, park or portion thereof. Emergency vehicle access includes, but is not limited to,
fire lanes, public and private streets, parking lot lanes, access roadways, and walkways.
f) “Food” means any item provided in Health and Safety Code Section 113781, or
any successor section.
g) “Hearing officer” means an individual designated by the City Manager to determine
appeals pursuant to and in accordance with section 5.22.080.
h) “Heating element” means any device used to create heat for food preparation.
i) “Merchandise” means any item(s) that can be sold and immediately obtained from
a sidewalk vendor which is not considered food. Items for rent shall not be considered
merchandise.
j) “Park” means any area dedicated or established as a public park, including without
limitation, active and passive parks.
7 of 26 Attachment A March 19, 2019, Item # 2.1
Ordinance No. 19.xxx
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k) “Pedestrian pathway” or “pathway” means a paved path or walkway developed
primarily for pedestrian travel, other than a sidewalk.
l) “Person” means and includes all domestic and foreign corporations, associations,
syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law
trusts, societies, and individuals transacting and carrying on any business in the City.
m) “Public property” means all property owned or controlled by the City, including, but
not limited to, alleys, parks, pathways, streets, parking lots, sidewalks, and walking trails.
n) “Residential” means any area zoned exclusively as residential in Title 17 of this
code, including without limitation the City’s RR-A through RR-C, RS-1 through RS-7, RC and RA
zoning districts.
o) “Roaming sidewalk vendor” means a sidewalk vendor who moves from place-to-
place and stops only to complete a transaction.
p) “Sidewalk” means that portion of a street, other than the roadway, set apart by
curbs, barriers, markings or other delineation for pedestrian travel.
q) “Sidewalk vending receptacle” means a pushcart, stand, display, wagon,
showcase, rack, or non-motorized conveyance used for sidewalk vending activities. “Sidewalk
vending receptacle” shall not include pedal driven carts.
r) “Sidewalk vendor” or “vendor” means a person(s) who sells food or merchandise
from a sidewalk vending receptacle or from one’s person, upon a public sidewalk or pathway.
s) “Sidewalk vendor activities” or “sidewalk vending activity” means actions that
qualify a person as a sidewalk vendor or actions done in anticipation of becoming a sidewalk
vendor such as, but not limited to, installation, placement, or maintenance of any sidewalk vendor
receptacles.
t) “Special event” means any temporary permitted event approved by the City.
u) “Stationary sidewalk vendor” means a sidewalk vendor who vends from a fixed
location.
v) “Street” means a way or place of whatever nature, publicly maintained, within City
public right-of-way, and open to the use of the public for purposes of vehicular travel.
w) “Swap meet” means a location operated in accordance with Article 6 (commencing
with Section 21660) of Chapter 9 of Division 8 of the Business and Professions Code, and any
regulations adopted pursuant to that Chapter, or any successor Chapter.
x) “Temporary use permit” means any permit issued by the City of Poway for
temporary uses (e.g., special event permits, temporary use permits, film permits, park or facility
reservations).
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Ordinance No. 19.xxx
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y) “Tobacco product” shall have the same meaning as defined in Section 8.05.020 of
this code, or any successor section.
5.22.030 Permit required
A. Permit Required. No person, either for himself/herself or any other person, shall
engage in any sidewalk vendor activities within the City without first applying for and receiving a
permit from the City Manager, or his or her designee, in accordance with this chapter.
B. Application. A written application for a sidewalk vendor permit shall be filed with
the City Manager, or his or her designee, on a form provided by the City and shall contain the
following information:
1. The name, address, and telephone number of the person applying to
become a sidewalk vendor;
2. A copy of a California driver’s license or identification card (or other photo
identification deemed acceptable by the City), as well as a California driver’s license or
identification card number, individual taxpayer identification number, or municipal identification
number (which shall not be available to the public for inspection, is confidential, and shall not be
disclosed except as required to administer the permit or comply with a state law or state or federal
court order);
3. The name, address, and telephone number of the person who will be in
charge of any roaming sidewalk vendors, sidewalk vending activity and/or be responsible for the
person(s) working at the sidewalk vending receptacle;
4. The name, address, and telephone number of all persons that will be
employed as roaming sidewalk vendors or at a sidewalk vending receptacle;
5. The number of sidewalk vending receptacles the sidewalk vendor will
operate within the City under the permit;
6. Whether the vendor intends to operate as a stationary sidewalk vendor or
a roaming sidewalk vendor;
7. The day(s) and hours of operation the stationary sidewalk vendor intends
to operate at such location(s);
8. The location(s) in the City where the stationary sidewalk vendor intends to
operate;
9. The dimensions of the sidewalk vendor’s sidewalk vending receptacle(s),
including a picture of each sidewalk vending receptacle operating under the permit;
10. Whether the sidewalk vendor will be selling food, merchandise, or both;
11. If the sidewalk vendor is selling food, a description of the type of food to be
sold, whether such foods are prepared on site, and whether the vendor requires a heating element
to prepare the food;
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12. If the vendor is selling merchandise, a description of the merchandise to be
sold;
13. A copy of the health permit required for any sidewalk vendors selling food,
as required by the County of San Diego, Title 8 of the PMC, or any successor chapter;
14. Proof of his or her possession of a valid California Department of Tax and
Fee Administration seller’s permit, which shall be maintained during the pendency of the sidewalk
vendor’s permit;
15. A statement disclosing whether the applicant has ever been convicted of
any criminal offense(s) and an agreement to submit to a criminal background check, including
Live Scan fingerprinting;
16. An acknowledgment that the sidewalk vendor will comply with all other
generally applicable local, state, and federal laws;
17. A certification that, to his or her knowledge and belief, the information
contained within the application is true and correct;
18. An agreement by the sidewalk vendor to defend, indemnify, release and
hold harmless the City, its City Council, boards, commissions, officers and employees from and
against any and all claims, demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation,
attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may
arise from or in any manner relating (directly or indirectly) to the permit or the vendor’s sidewalk
vending activities. This indemnification shall include, but not be limited to, damages awarded
against the City, if any, costs of suit, attorneys’ fees, and other expenses incurred in connection
with such claim, action, or proceeding whether incurred by the permittee, City, and/or the parties
initiating or bringing such proceeding;
19. An acknowledgement that the sidewalk vendor’s use of public property is
at their own risk, the City does not take any steps to ensure public property is safe or conducive
to the sidewalk vending activities, and the sidewalk vendor uses public property at his or her own
risk;
20. An acknowledgment by the sidewalk vendor that he or she will obtain, and
at all times during the duration of the permit, maintain any insurance of such types and in such
amounts as required by the City’s risk manager, and
21. Any other relevant information required by the City Manager.
C. Application and Permit Fees. Each application for a sidewalk vendor permit shall
be accompanied by an application fee as established by resolution of the City Council. The
application and permit is only applicable to the individual(s) named on the application. If said
permit is approved, it shall not be necessary for the permittee to obtain a City business certificate
to carry on the activities authorized by said permit, unless such permittee maintains a permanent
place of business within the City.
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5.22.040 Issuance of permit
A. Within thirty (30) calendar days of receiving a complete application, the City
Manager may issue a sidewalk vendor permit, with appropriate conditions, as provided for herein,
if he or she finds based on all of the relevant information that:
1. The conduct of the sidewalk vendor will not unduly interfere with traffic or
pedestrian movement (specifically including but not limited to complying with PMC Title 15
pedestrian clearances), or tend to interfere with or endanger the public peace or rights of nearby
residents to the quiet and peaceable enjoyment of their property, or otherwise be detrimental to
the public peace, health, safety or general welfare;
2. The conduct of the sidewalk vendor will not unduly interfere with normal
governmental or City operations, threaten to result in damage or detriment to public property, or
result in the City incurring costs or expenditures in either money or personnel not reimbursed in
advance by the vendor;
3. The conduct of such sidewalk vending activity will not constitute a fire
hazard, and all proper safety precautions will be taken;
4. The conduct of such sidewalk vending activity will not require the diversion
of law enforcement personnel to properly police the area of such activity as to interfere with normal
police protection for other areas of the City;
5. The sidewalk vendor has paid all previous administrative fines, completed
all community service, and completed any other alternative disposition associated in any way with
a previous violation of this chapter;
6. The sidewalk vendor has not had a permit revoked within the same
calendar year;
7. The sidewalk vendor’s application contains all required information;
8. The sidewalk vendor has not made a materially false, misleading, or
fraudulent statement of fact to the City in the application process;
9. The sidewalk vendor has satisfied all the requirements of this chapter;
10. The sidewalk vendor has paid all applicable fees as set by City Council
resolution;
11. The sidewalk vendor’s sidewalk vending receptacle and proposed activities
conform to the requirements of this chapter;
12. The sidewalk vendor has adequate insurance to protect the City from
liability associated with the sidewalk vendor’s activities, including the naming of the City as an
additional insured, as determined by the City’s risk manager; and
13. The vendor has satisfactorily provided all information requested by the City
Manager to consider the vendor’s application.
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B. A sidewalk vendor permit is non-transferable. Any change in ownership or
operation of a sidewalk vendor or sidewalk vending receptacle requires a new permit under this
chapter.
C. All permits issued under this chapter, regardless of when issued, expire on
December 31 of the year in which they were issued.
5.22.050 Operating conditions
All sidewalk vendors are subject to the following operating conditions when conducting
sidewalk vending activities:
A. All food and merchandise shall be stored either inside or affixed to the sidewalk
vendor receptacle or carried by the sidewalk vendor. Food and merchandise shall not be stored,
placed, or kept on any public property. If affixed to the sidewalk vendor receptacle, the overall
space taken up by the sidewalk vendor receptacle shall not exceed the size requirements
provided in this section.
B. The sidewalk vendor permit shall be displayed conspicuously at all times on the
sidewalk vending receptacle or the sidewalk vendor’s person. If multiple sidewalk vendors are
staffing a sidewalk vendor receptacle or working as roaming sidewalk vendors, each person shall
wear their permit on their person in a conspicuous manner.
C. Sidewalk vendors shall not leave their sidewalk vending receptacle unattended to
solicit business for their sidewalk vending activities. Sidewalk vending receptacles shall not be
stored on public property and shall be removed when not in active use by a vendor.
D. All sidewalk vendors shall allow any law enforcement official, firefighter, life safety
services officer, or code enforcement officer, at any time, to inspect their sidewalk vending
receptacle for compliance with the size requirements of this chapter and to ensure the safe
operation of any heating elements used to prepare food.
E. Sidewalk vending receptacles shall not exceed a total height of three (3) feet, a
total width of three (3) feet, and a total length of three (3) feet.
F. No sidewalk vending receptacle shall be motorized or pedal-driven.
G. If a sidewalk vending receptacle requires more than one (1) person to conduct the
sidewalk vending activity, all sidewalk vendors associated with the sidewalk vending receptacle
shall be within five (5) feet of the sidewalk vending receptacle when conducting sidewalk vending
activities.
H. Sidewalk vendors that sell food shall maintain a trash container in or on their
sidewalk vending receptacle and shall not empty their trash into public trashcans. The size of the
vendor’s trash container shall be taken into account when assessing the total size limit of a
sidewalk vending receptacle.
I. Sidewalk vendors shall maintain sanitary conditions in the 10-foot radius around
and within the vicinity of the vendor and shall not leave any location without returning the location
to the condition when the sidewalk vendor first arrived at the location, by, including but not limited
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Ordinance No. 19.xxx
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to, picking up, removing, and disposing of all food, grease or other fluid, item, trash or refuse from
their operation. Any disposal activities must comply with Chapter 13.09 of this Code and all other
applicable stormwater law, rules and regulations, as well as all applicable law, rules and
regulations relating to public health and safety.
J. Sidewalk vendors shall maintain a minimum four (4) foot clear accessible path free
from obstructions, including sidewalk vending receptacles and customer queuing area.
K. Sidewalk vendors shall comply with the noise standards provided in Chapter 8.08
of this Code, and any successor sections. Additionally, all use of sound amplification, music, live
entertainment, bells, whistles, and horns are prohibited when vending in residential areas.
L. Sidewalk vendors shall not approach persons to sell food or merchandise and shall
not interfere, in any way, with anyone engaged in an activity to sell food or merchandise.
M. Sidewalk vendors shall not vend to or otherwise conduct transactions with persons
in moving vehicles or vehicles parked or stopped.
N. No freestanding commercial signs are permitted, as set forth in Chapter 17.40 of
this Code. Sidewalk vendors shall not affix, employ or otherwise use a light display of any kind in
connection with sidewalk vending activities, specifically including but not limited to flashing or
animated lights.
5.22.060 Prohibited activities and locations
A. Sidewalk vendors shall comply with all operating conditions, including those
conditions set forth in Section 5.22.050.
B. Sidewalk vendors shall not engage in any of the following activities:
1. Renting merchandise to customers.
2. Displaying merchandise or food that is not available for immediate sale.
3. Selling, processing, cultivating, distributing and/or delivering adult-oriented
material, tobacco products, alcoholic beverages, drugs of any kind, pharmaceuticals, or cannabis,
including medical and recreational marijuana and related merchandise or paraphernalia.
4. Using an open flame on or within any sidewalk vending receptacle.
5. All sidewalk vendors, regardless of whether a roaming sidewalk vendor or
stationary sidewalk vendor, are prohibited from conducting sidewalk vending activities between
the hours of 10:00 p.m. and 7:00 a.m. daily. In parks, sidewalk vending activities will end at
10:00 p.m. or one hour before park closure, whichever is earlier. In residential areas, all stationary
sidewalk vending is prohibited. In residential areas, roaming sidewalk vending activity is
prohibited between the hours of 6:00 p.m. or sunset, whichever is earlier, and 9:00 a.m. of the
following day, Monday through Saturday, inclusive, and all day on Sundays and federal holidays.
13 of 26 Attachment A March 19, 2019, Item # 2.1
Ordinance No. 19.xxx
Page 10 of 15
6. Continuing to offer food or merchandise for sale, following, or
accompanying any person who has been offered food or merchandise after the person has asked
the vendor to leave or after the person has declined the offer to purchase food or merchandise.
7. Knowingly making false statements or misrepresentations during the
course of offering food or merchandise for sale.
8. Blocking or impeding the path of the person(s) being offered food or
merchandise to purchase.
9. Making any statements, gesture, or other communication which a
reasonable person in the situation of the person(s) being offered food or merchandise to purchase
would perceive to be a threat and which has a reasonable likelihood to produce in the person(s)
a fear that the threat will be carried out.
10. Touching the person(s) being offered to purchase food or merchandise
without that person(s)’ consent.
11. Selling of animals of any kind.
C. Sidewalk vendors shall not engage in sidewalk vending activities at the following
locations:
1. Within twelve (12) inches of any curb face on all roads;
2. Within fifteen (20) feet of any entrance or exit to a building, structure or
facility; or
3. On any designated emergency vehicle accessway.
4. Any public property that does not meet the definition of a sidewalk including
without limitation any alley, courtyard, unpaved trail, street, roadway or parking lot.
5. Within two hundred (200) feet of an area designated for a temporary special
permit issued by the City, during the limited duration of the temporary special permit. If the City
provides any notice, business interruption mitigation, or other rights to affected businesses or
property owners under the City’s temporary special permit, such notice will also be provided to
any sidewalk vendors specifically permitted to operate in the area, if applicable.
6. Within two hundred (200) feet of the Poway Center for the Performing Arts,
located at 15498 Espola Road, from the time period commencing two (2) hours before any
ticketed event (including without limitation any play, performance, or concert) at the Poway Center
for the Performing Arts is scheduled to begin, until two hours after that event has ended.
7. At the Blue Sky Ecological Reserve or Iron Mountain trailhead, specifically
including but not limited to all associated parking lots, both of which were created and are
maintained to allow residents and visitors to enjoy the natural landscape and habitat of myriad
species of flora and fauna. Permitting any commercial sidewalk vending in the reserve would not
only diminish the public’s use and enjoyment of natural resources and recreational activities, such
14 of 26 Attachment A March 19, 2019, Item # 2.1
Ordinance No. 19.xxx
Page 11 of 15
sidewalk vending activity will create an undue concentration of commercial activity that
unreasonably interferes with the scenic and natural character of the reserve.
8. On any private property without the express written consent of the owner
or lessee of the property.
9. Sidewalk vendors shall not engage in sidewalk vending activities within fifty
50) feet of another sidewalk vendor.
10. Sidewalk vendors shall not engage in sidewalk vending activities within one
hundred (100) feet of the property line of a school, a place of worship, or a child day-care facility.
11. Sidewalk vendors shall not engage in sidewalk vending activities within two
hundred (200) feet of a permitted certified farmers’ market or swap meet during the limited
operating hours of that certified farmers’ market or swap meet.
12. Stationary sidewalk vending activities shall only occur on sidewalks or
pathways with a minimum width of eight (8) feet or larger.
13. Sidewalk vendors shall not engage in sidewalk vending activities within
twenty-five (25) feet of a:
a) Fire hydrant;
b) Curb which has been designated as yellow or red zone, or a bus
zone;
c) Automated teller machine;
d) Driveway, alley, or street corner;
e) Trash or recycling receptacles, bike racks, benches, bus stops or
similar public use items; and
f) Public art objects, items, and displays.
14. Sidewalk vendors shall not engage in sidewalk vending activities that would
violate provisions of this code relating to visibility requirements for streets, alleys, driveways, and
intersections.
15. Stationary sidewalk vendors shall not sell food or merchandise or engage
in any sidewalk vending activities at any park where the City has signed an agreement for
concessions that exclusively permits the sale of food or merchandise by a concessionaire.
16. On any sidewalk with a gradient in excess of ten percent (10%).
17. Within two hundred (200) feet of any public safety facility, including without
limitation police stations and fire stations.
18. Within twenty-four (24) inches of a parallel parking space.
15 of 26 Attachment A March 19, 2019, Item # 2.1
Ordinance No. 19.xxx
Page 12 of 15
19. On any sidewalk not adjacent to a state highway where vending equipment
and queuing patrons would reduce clearance to less than four (4) feet.
20. On any sidewalk adjacent to a state highway where vending equipment and
queuing patrons would reduce clearance to less than five (5) feet, with temporary restrictions of
no less than three (3) feet.
21. On any sidewalk where vending equipment and queuing patrons would
restrict access requirements under the Americans with Disabilities Act.
22. On any sidewalk where vending equipment and queuing patrons would
jeopardize the fire or life safety of any person.
D. Sidewalk vending receptacles shall not touch, lean against or be affixed at any
time to any building or structure including, but not limited to lampposts, parking meters, mailboxes,
traffic signals, fire hydrants, benches, bus shelters, newsstands, trashcans, or traffic barriers.
5.22.070 Penalties
A. Violations of this chapter shall not be prosecuted as infractions or misdemeanors
and shall only be punished by the following administrative fine and rescission provisions.
B. Any violation of this chapter may be punished by:
1. An administrative fine not exceeding one hundred dollars ($100) for a first
violation;
2. An administrative fine not exceeding two hundred dollars ($200) for a
second violation within one (1) year of the first violation; and
3. An administrative fine not exceeding five hundred dollars ($500) for each
additional violation within one (1) year of the first violation.
C. If a sidewalk vendor violates any portion of this chapter and cannot present the
citing officer with a proof of a valid permit, the sidewalk vendor may be punished by:
1. An administrative fine not exceeding two hundred fifty dollars ($250) for a
first violation;
2. An administrative fine not exceeding five hundred dollars ($500) for a
second violation within one (1) year of the first violation; and
3. An administrative fine not exceeding one thousand dollars ($1,000) for
each additional violation within one (1) year of the first violation.
D. Upon proof of a valid permit issued by the City, the administrative fines set forth in
subsection C shall be reduced to the administrative fines set forth in subsection B, or any
successor sections.
16 of 26 Attachment A March 19, 2019, Item # 2.1
Ordinance No. 19.xxx
Page 13 of 15
E. The City Manager, or his or her designee, may rescind a permit issued to a
sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations.
5.22.080 Appeals
A. Decisions to deny an application for a permit or to impose administrative fines may
be appealed by any interested person. Appeals shall be heard and determined by the Hearing
Officer.
B. Appeals shall be initiated within ten (10) calendar days of the decision or imposition
of administrative fine. If the 10th day falls on Saturday, Sunday, or another day when City Hall is
closed, the deadline shall be extended to 5:00 p.m. of the next working day. Appeals of a decision
to deny an application for a permit shall be accompanied by a fee as established by resolution of
the City Council. Notwithstanding any other provision of law, a person appealing an administrative
fine is not required to pay the administrative fine as a prerequisite to filing an appeal.
C. Appeals of decisions or administrative fines shall be made in writing to the Hearing
Officer. The appeal must be legible and set forth:
1. The appellant’s full name, address and phone number;
2. The subordinate entity;
3. The date of the determination;
4. The determination for which review is sought;
5. The appellant’s interest in the appealed determination; and
6. Each reason why the appellant appeals the determination.
D. Decisions regarding administrative fines that are appealed shall not become
effective until the appeal is resolved.
E. An insufficient appeal shall be returned to the appellant.
F. If the appeal is sufficient, the City Clerk shall set the appeal for a hearing before
the Hearing Officer within thirty (30) calendar days of the filing of the appeal unless both the
appellant and the Hearing Officer consent to a later date.
G. The Hearing Officer shall give notice in writing to the appellant of the time and
location of the appeal hearing. At the hearing, the Hearing Officer shall review the record of the
decision or administrative fine and hear testimony of the appellant, if any, the applicant and any
other interested party. The appeal shall be reviewed and determined on a de novo basis.
1. If an administrative fine is the subject of an appeal, the Hearing Officer shall
take into consideration the person’s ability to pay the fine. The Hearing Officer shall provide the
person with notice of his or her right to request an ability-to-pay determination and shall make
available instructions or other materials for requesting an ability-to-pay determination. The person
17 of 26 Attachment A March 19, 2019, Item # 2.1
Ordinance No. 19.xxx
Page 14 of 15
may request an ability-to-pay determination at or before the hearing or while the administrative
fine remains unpaid.
2. If the person meets the criteria described in subdivision (a) or (b) of
Government Code Section 68632, or any successor section, the Hearing Officer shall accept, in
full satisfaction, twenty percent (20%) of the administrative fine imposed pursuant to this chapter.
3. The Hearing Officer may allow the person to complete community service
in lieu of paying the total administrative fine, may waive the administrative fine, or may offer an
alternative disposition.
H. After the hearing, the Hearing Officer shall affirm, modify or reverse the original
decision or administrative fine. When a decision or administrative fine is modified or reversed,
the Hearing Officer shall state the specific reasons for modification or reversal. Decisions on
appeals shall be rendered within thirty (30) calendar days of the close of the hearing. The Hearing
Officer shall mail notice of a decision to the appellant. Such notice shall be mailed within five
5) working days after the date of the decision to the appellant. The decision of the Hearing Officer
shall be final.
SECTION 2: Section 9.48.240, subdivision (A) of the Poway Municipal Code is hereby
amended to read as follows:
Except and only as expressly permitted in PMC Chapter 5.22, Nno person shall
sell or offer for sale any goods, wares, articles or merchandise; or practice, carry
on, conduct or solicit for any trade, occupation, business or profession within a City
Community Services facility without the authorization of the Director. Nothing in
this provision shall prohibit sales of articles or solicitations by nonprofit
organizations that are otherwise allowed by law.
SECTION 3: If any section, subsection, sentence, clause or phrase of this Ordinance is
for any reason held to be unconstitutional or otherwise invalid, such invalidity shall not affect the
validity of this entire Ordinance or any of the remaining portions hereof. The City Council hereby
declares that it would have passed this Ordinance, and each section, subsection, subdivision,
sentence, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, subdivisions, sentences, clauses or phrases be declared unconstitutional or
otherwise invalid.
SECTION 4: The City Council finds the introduction and adoption of this ordinance is not
subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2)
the activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the
CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential
for resulting in physical change to the environment, directly or indirectly.
SECTION 5: This Ordinance shall be codified.
EFFECTIVE DATE: This Ordinance shall be in full force and effect thirty (30) days after
its adoption.
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Ordinance No. 19.xxx
Page 15 of 15
CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this
Ordinance and cause it or a summary of it, to be published with the names of the City Council
members voting for and against the same in the Poway News Chieftain, a newspaper of general
circulation in the City of Poway within fifteen (15) days after its adoption and shall post a certified
copy of this Ordinance in the Office of the City Clerk in accordance with Government Code §
36933.
Introduced and first read at a regular meeting of the City Council of the City of Poway held
on the 19th day of March 2019, and thereafter, PASSED, APPROVED, AND ADOPTED at a
regular meeting of the City Council of the City of Poway held on the ____ day of ________ 2019.
ATTEST:
Faviola Medina, CMC, City Clerk
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
ss
Steve Vaus, Mayor
I, Faviola Medina, City Clerk of the City of Poway, California, do hereby certify that the
above and foregoing Ordinance No. XXX was duly adopted by the City Council at a regular
meeting of said City Council held on the 19th of March 2019, and that it was so adopted by the
following vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
19 of 26
Faviola Medina, City Clerk
City of Poway
Attachment A March 19, 2019, Item# 2.1
Senate Bill No. 946
CHAPTER 459
An act to add Chapter 6.2 (commencing with Section 51036) to Part I of
Division I of Title 5 of the Government Code, relating to sidewalk vendors.
Approved by Govemor September 17, 2018. Filed with
Secretary of State September 17, 2018.1
LEGISLATIVE COUNSEL'S DIGEST
SB 946, Lara. Sidewalk vendors.
Existing law authorizes a local authority, by ordinance or resolution, to
adopt requirements for the public safety regulating any type of vending and
the time, place, and manner of vending from a vehicle upon a street.
This bill would prohibit a local authority, as defined, from regulating
sidewalk vendors, except in accordance with the provisions of the bill. The
bill would provide that a local authority is not required to adopt a new
program to regulate sidewalk vendors if the local authority has established
an existing program that substantially complies with the provisions of the
bill. The bill would apply these provisions to a chartered or general law city,
county, or city and county.
The bill would require a local authority that elects to adopt a sidewalk
vending program to, among other things, not require a sidewalk vendor to
operate within specific parts of the public right-of-way, except when that
restriction is directly related to objective health, safety, or welfare concerns,
and not restrict sidewalk vendors to operate only in a designated
neighborhood or area, except as specified. The bill would authorize a local
authority to, by ordinance or resolution, adopt additional requirement%
regulating the time, place, and manner of sidewalk vending, as specified,
if the requirements are directly related to objective health, safety, or welfare
concerns. The bill would also authorize a local authority to prohibit sidewalk
vendors in areas located within the immediate vicinity of a permitted certified
fanners' market and a permitted soap meet, as specified, and to restrict or
prohibit sidewalk vendors within the immediate vicinity of an area designated
for a temporary special permit issued by the local authority, as specified. A
violation would be punishable only by an administrative fine, as specified,
pursuant to an ability -to -pay determination, and proceeds would be deposited
in the treasury of the local authority.
The bill would require the dismissal of any criminal prosecutions under
any local ordinance or resolution regulating or prohibiting sidewalk vendors
that have not reached final judgment. The bill would also authorize a person
who is currently serving, or who completed, a sentence, or who is subject
to a fine, for a conviction of a misdemeanor or infraction for sidewalk
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Ch. 459 —2—
vending,
2—
vending, as specified, to petition for dismissal of the sentence, fine, or
conviction.
Existing constitutional provisions require that a statute that limits the
tight of access to the meetings of public bodies or the writings of public
officials and agencies be adopted with findings demonstrating the interest
protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
The people of the State of California do enact as jollows:
SECTION I. (a) The Legislature finds and declares all of the following:
1) Sidewalk vending provides important entrepreneurship and economic
development opportunities to low-income and immigrant communities.
2) Sidewalk vending increases access to desired goods, such as culturally
significant food and merchandise.
3) Sidewalk vending contributes to a safe and dynamic public space.
4) The safety and welfare of the general public is promoted by
encouraging local authorities to support and properly regulate sidewalk
vending.
5) The safety and welfare of the general public is promoted by
prohibiting criminal penalties for violations of sidewalk vending ordinances
and regulations.
6) This act applies to any city, county, or city and county, including a
charter city. The criminalization of small business entrepreneurs, and the
challenges that those entrepreneurs face as a result of a criminal record, are
matters of statewide concern. Further, unnecessary barriers have been erected
blocking aspiring entrepreneurs from accessing the formal economy, harming
California's economy in the process, and disrupting the regulation of
business, which is a matter of statewide concern. Moreover, California has
an interest in the regulation of traffic, a matter of statewide concern, whether
in ensuring the appropriate flow of traffic or in ensuring the safety of
pedestrians on the road or the sidewalk.
b) It is the intent of the Legislature to promote entrepreneurship and
support immigrant and low-income communities.
SEC. 2. Chapter 6.2 (commencing with Section 51036) is added to Part
I of Division I of Title 5 of the Government Code, to read:
CHAPTER 6.2. SIDEWALK VENDORS
51036. For purposes of this chapter, the following definitions apply:
a) "Sidewalk vendor" means a person who sells food or merchandise
from a pushcart, stand, display, pedal -driven cart, wagon, showcase, rack,
or other nonmotorized conveyance, or from one's person, upon a public
sidewalk or other pedestrian path.
b) "Roaming sidewalk vendor" means a sidewalk vendor who moves
from place to place and stops only to complete a transaction.
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21 of 26 March 19, 2019 Item # I -I
3— Ch. 459
c) "Stationary sidewalk vendor" means a sidewalk vendor who vends
from a fixed location.
d) "Local authority" means a chartered or general law city, county, or
city and county.
51037. (a) A local authority shall not regulate sidewalk vendors except
in accordance with Sections 51038 and 51039.
b) Nothing in this chapter shall be construed to affect the applicability
of Part 7 (commencing with Section 1 13700) of Division 104 of the Health
and Safety Code to a sidewalk vendor who sells food.
c) Nothing in this chapter shall be construed to require a local authority
to adopt a new program to regulate sidewalk vendors if the local authority
has established an existing program that substantially complies with the
requirements in this chapter.
51038. (a) A local authority may adopt a program to regulate sidewalk
vendors in compliance with this section.
b) A local authority's sidewalk vending program shall comply with all
of the following standards:
1) A local authority shall not require a sidewalk vendor to operate within
specific parts of the public right-of-way, except when that restriction is
directly related to objective health, safety, or welfare concerns.
2) (A) A local authority shall not prohibit a sidewalk vendor from selling
food or merchandise in a park owned or operated by the local authority,
except the local authority may prohibit stationary sidewalk vendors from
vending in the park only if the operator of the park has signed an agreement
for concessions that exclusively permits the sale of food or merchandise by
the concessionaire.
B) Notwithstanding subparagraph (A), a local authority may adopt
additional requirements regulating the time, place, and manner of sidewalk
vending in a park owned or operated by the local authority if the
requirements are any of the following:
i) Directly related to objective health, safety, or welfare concerns.
ii) Necessary to ensure the public's use and enjoyment of natural
resources and recreational opportunities.
iii) Necessary to prevent an undue concentration of commercial activity
that unreasonably interferes with the scenic and natural character of the
park.
3) A local authority shall not require a sidewalk vendor to first obtain
the consent or approval of any nongovernmental entity or individual before
he or she can sell food or merchandise.
4) (A) A local authority shall not restrict sidewalk vendors to operate
only in a designated neighborhood or area, except when that restriction is
directly related to objective health, safety, or welfare concerns.
B) Notwithstanding subparagraph (A), a local authority may prohibit
stationary sidewalk vendors in areas that are zoned exclusively residential,
but shall not prohibit roaming sidewalk vendors.
5) A local authority shall not restrict the overall number of sidewalk
vendors permitted to operate within the jurisdiction of the local authority.
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Ch. 459 —4—
unless
4—
unless the restriction is directly related to objective health, safety, or welfare
concerns.
c) A local authority may, by ordinance or resolution, adopt additional
requirements regulating the time, place, and manner of sidewalk vending
if the requirements are directly related to objective health, safety, or welfare
concerns, including, but not limited to, any of the following:
1) Limitations on hours of operation that are not unduly restrictive. In
nonresidential areas, any limitations on the hours of operation for sidewalk
vending shall not be more restrictive than any limitations on hours of
operation imposed on other businesses or uses on the same street.
2) Requirements to maintain sanitary conditions.
3) Requirements necessary to ensure compliance with the federal
Americans with Disabilities Act of 1990 (Public Law 101-336) and other
disability access standards.
4) Requiring the sidewalk vendor to obtain from the local authority a
permit for sidewalk vending or a valid business license, provided that the
local authority issuing the permit or business license accepts a California
driver's license or identification number, an individual taxpayer identification
number, or a municipal identification number in lieu of a social security
number if the local authority otherwise requires a social security number
for the issuance of a permit or business license, and that the number collected
shall not be available to the public for inspection, is confidential, and shall
not be disclosed except as required to administer the permit or licensure
program or comply with a state law or state or federal court order.
5) Requiring the sidewalk vendor to possess a valid California
Department of Tax and Fee Administration seller's permit.
6) Requiring additional licenses from other state or local agencies to
the extent required by law.
7) Requiring compliance with other generally applicable laws.
8) Requiring a sidewalk vendor to submit information on his or her
operations, including, but not limited to, any of the following:
A) The name and current mailing address of the sidewalk vendor.
B) A description of the merchandise offered for sale or exchange.
C) A certification by the vendor that to his or her knowledge and belief,
the information contained on the form is we.
D) The California seller's permit number (California Department of
Tax and Fee Administration sales tax number), if any, of the sidewalk
vendor.
E) If the sidewalk vendor is an agent of an individual, company,
partnership, or corporation, the name and business address of the principal.
d) Notwithstanding subdivision (b), a local authority may do both of
the following:
1) Prohibit sidewalk vendors in areas located within the immediate
vicinity of a permitted certified farmers' market or a permitted swap meet
during the limited operating hours of that certified farmers' market or swap
meet. A "certified farmers' market' means a location operated in accordance
with Chapter 10.5 (commencing with Section 47000) of Division 17 of the
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5— Ch. 459
Food and Agricultural Code and any regulations adopted pursuant to that
chapter. A "swap meet" means a location operated in accordance with Article
6 (commencing with Section 21660) of Chapter 9 of Division 8 of the
Business and Professions Code, and any regulations adopted pursuant to
that article.
2) Restrict or prohibit sidewalk vendors within the immediate vicinity
of an area designated for a temporary special permit issued by the local
authority, provided that any notice, business interruption mitigation, or other
rights provided to affected businesses or property owners under the local
authority's temporary special permit are also provided to any sidewalk
vendors specifically permitted to operate in the area, if applicable. For
purposes of this paragraph, a temporary special permit is a permit issued
by the local authority for the temporary use of, or encroachment on, the
sidewalk or other public area, including, but not limited to, an encroachment
permit, special event permit, or temporary event permit, for purposes
including, but not limited to, filming, parades, or outdoor concerts. A
prohibition of sidewalk vendors pursuant to this paragraph shall only be
effective for the limited duration of the temporary special permit.
e) For purposes of this section, perceived community animus or
economic competition does not constitute an objective health, safety, or
welfare concern.
51039. (a) (1) A violation of a local authority's sidewalk vending
program that complies with Section 51038 is punishable only by the
following:
A) An administrative fine not exceeding one hundred dollars ($100) for
a first violation.
B) An administrative fine not exceeding two hundred dollars ($200) for
a second violation within one year of the first violafion.
C) An administrative fine not exceeding five hundred dollars ($500) for
each additional violation within one year of the first violation.
2) A local authority may rescind a permit issued to a sidewalk vendor
for the term of that permit upon the fourth violation or subsequent violations.
3) (A) If a local authority requires a sidewalk vendor to obtain a
sidewalk vending permit from the local authority, vending without a sidewalk
vending permit may be punishable by the following in lieu of the
administrative fines set forth in paragraph (I ):
i) An administrative fine not exceeding two hundred fifty dollars ($250)
for a first violation.
ii) An administrative fine not exceeding five hundred dollars ($500) for
a second violation within one year of the first violation.
iii) An administrative fine not exceeding one thousand dollars ($1,000)
for each additional violation within one year of the first violation.
B) Upon proof of a valid permit issued by the local authority, the
administrative fines set forth in this paragraph shall be reduced to the
administrative fines set forth in paragraph (1), respectively.
b) The proceeds of an administrative fine assessed pursuant to
subdivision (a) shall be deposited in the treasury of the local authority.
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Ch. 459 —6—
c)
6—
c) Failure to pay an administrative fine pursuant to subdivision (a) shall
not be punishable as an infraction or misdemeanor. Additional fines, fees,
assessments, or any other financial conditions beyond those authorized in
subdivision (a) shall not be assessed.
d) (1) A violation of a local authority's sidewalk vending program that
complies with Section 51038, or a violation of any rules or regulations
adopted prior to January 1, 2019, that regulate or prohibit sidewalk vendors
in thejurisdiction of a local authority, shall not be punishable as an infraction
or misdemeanor, and the person alleged to have violated any of those
provisions shall not be subject to arrest except when permitted under law.
2) Notwithstanding any other law, paragraph (1) shall apply to all
pending criminal prosecutions under any local ordinance or resolution
regulating or prohibiting sidewalk vendors. Any of those criminal
prosecutions that have not reached final judgment shall be dismissed.
e) A local authority that has not adopted rules or regulations by ordinance
or resolution that comply with Section 51037 shall not cite, fine, or prosecute
a sidewalk vendor for a violation of any rule or regulation that is inconsistent
with the standards described in subdivision (b) Section 51038.
f) (1) When assessing an administrative fine pursuant to subdivision
a), the adjudicator shall take into consideration the person's ability to pay
the fine. The local authority shall provide the person with notice of his or
her right to request an ability -to -pay determination and shall make available
instructions or other materials for requesting an ability -to -pay determination.
The person may request an ability -to -pay determination at adjudication or
while the judgment remains unpaid, including when a case is delinquent or
has been referred to a comprehensive collection program.
2) If the person meets the criteria described in subdivision (a) or (b) of
Section 68632, the local authority shall accept, in full satisfaction, 20 percent
of the administrative fine imposed pursuant to subdivision (a).
3) The local authority may allow the person to complete community
service in lieu of paying the total administrative fine, may waive the
administrative fine, or may offer an alternative disposition.
g) (I) A person who is currently serving, or who completed, a sentence,
or who is subject to a fine, for a conviction of a misdemeanor or infraction
for sidewalk vending, whether by trial or by open or negotiated plea, who
would not have been guilty of that offense under the act that added this
section had that act been in effect at the time of the offense, may petition
for dismissal of the sentence, fine, or conviction before the trial court that
entered the judgment of conviction in his or her case.
2) Upon receiving a petition under paragraph (1), the court shall presume
the petitioner satisfies the criteria in paragraph (1) unless the party opposing
the petition proves by clear and convincing evidence that the petitioner does
not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1),
the court shall grant the petition to dismiss the sentence or fine, if applicable,
and dismiss and seal the conviction, because the sentence, fine, and
conviction are legally invalid.
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7— Ch. 459
3) Unless requested by the petitioner, no hearing is necessary to grant
or deny a petition filed under paragraph (I ).
4) If the court that originally sentenced or imposed a fine on the
petitioner is not available, the presidingjudge shall designate anotherjudge
to rule on the petition.
5) Nothing in this subdivision is intended to diminish or abrogate any
rights or remedies otherwise available to the petitioner.
6) Nothing in this subdivision or related provisions is intended to
diminish or abrogate the finality ofjudgments in any case not falling within
the purview of this chapter.
SEC. 3. The Legislature finds and declares that Section 2 of this act,
which adds Section 51038 to the Government Code, imposes a limitation
on the public's right of access to the meetings of public bodies or the writings
of public officials and agencies within the meaning of Section 3 of Article
1 of the California Constitution. Pursuant to that constitutional provision,
the Legislature makes the following findings to demonstrate the interest
protected by this limitation and the need for protecting that interest:
The Legislature finds and declares that in order to protect the privacy of
a sidewalk vendor with regard to his or her California driver's license or
identification number, individual taxpayer identification number, or
municipal identification number, when that number is collected in lieu of
a social security number for purposes of the issuance of a permit or business
license, it is necessary that the sidewalk vendor's number be confidential,
except as provided in this act.
X
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