BACKGROUND:
On September 17, 2018, Governor Jerry Brown signed Senate Bill 946 (SB 946), which establishes statewide governance of vending in the public right-of-way and parks. The purpose of this bill is to create entrepreneurial and economic development opportunities for certain individuals, by removing barriers to selling food and merchandise on public sidewalks and in parks. The bill went into effect on January 1, 2019.
The new law requires that cities allow sidewalk vending, and restrictions may only be imposed when directly related to objective public health, safety, or welfare concerns. Local jurisdictions that wish to regulate sidewalk vending are required to first adopt a program with rules and regulations consistent with SB 946.
The City has historically not allowed vendor activities in the right-of-way and the Municipal Code (CMC) does not explicitly regulate sidewalk vending. In order to be in compliance with SB 946 and retain local control, staff has drafted an Urgency Ordinance establishing a program to permit and regulate sidewalk vendors. The Urgency Ordinance will go into effect immediately and is valid for 45 days after adoption. After the 45 days the City Council may choose to extend the Urgency Ordinance an additional 10 months and 15 days, or may adopt a permanent ordinance.
ANALYSIS:
Upon passage of SB 946, the Community Planning and Building Department began reviewing changes the new Government Code and identifying required amendments to the City’s current Municipal Code to comply with State requirements. Staff reviewed several model ordinances used by cities throughout the State and evaluated strategies for compliance with the provisions of SB 946, while retaining local control to the extent feasible.
The provisions of SB 946 require local governments to adopt a program regulating sidewalk vending, if a local authority did not already have a program in place that complied with provisions of SB 946. The law identifies two categories of sidewalk vendors; roaming sidewalk vendors who move from place to place and only stop to complete a transaction, and stationary sidewalk vendors who vend from fixed locations. Table 1 describes the most significant provisions of SB 946 that impact how the City can regulate vending in the right-of-way
Table 1.
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Subject
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Description
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Areas of Operation
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Cities cannot outright prohibit vending in commercial zones. In residential areas, only stationary vendors can be prohibited. Restrictions can be imposed if related to public health, safety or welfare.
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City-owned Parks
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Cities cannot prohibit roaming vendors from operating in City-owned parks, but may prohibit stationary vendors, if under contract with a concessionaire. Restrictions can be imposed if related to public health, safety or welfare.
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Hours of Operation
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In commercial zones, hours cannot be more restrictive than other businesses. More restrictive hours are permitted in the residential zones.
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Limit on Number of Vendors
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Cities cannot limit the number of vendors or restrict them to certain areas of the City, unless restrictions are necessary to ensure public health, safety or welfare standards are met.
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Storefront Businesses
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Cities cannot require a sidewalk vendor to obtain permission from any business to operate near them. Cities do not have the authority to restrict a vendor from operating on the sidewalk due to conflicting business uses.
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DISCUSSION:
The draft ordinance establishes CMC Chapter 12.46 as the Sidewalk Vending Program (hereinafter ‘program’). The proposed program is consistent with SB 946 in that it establishes a permitting system for sidewalk vending, while recognizing the importance of regulation and enforcement of sidewalk vendor activities to promote the health, safety, and welfare of the public. The following sections provide an overview of some of the key regulations and restrictions established by the City’s new program.
Permitting Requirements
Government Code (GOV) Section 51038(C)(4) allows a local authority to require a sidewalk vendor to obtain a permit, subject to certain limitations. The proposed program would require an individual to obtain a vendor permit to engage in any sidewalk vendor activities. A permit enables the City to effectively regulate individuals who are engaging in sidewalk vending activities, and will ensure that vendors are complying with the rules and regulations set forth by the program. Because the program is being considering an urgency ordinance and not a permanent ordinance, staff recommends that the first permits be granted for a period of no longer than six (6) months.
The Community Planning and Building Department will issue a permit to a sidewalk vendor when the application requirements set forth in the program are satisfied. Permit administration costs will be recovered through the permit fees. A fee resolution for the vendor permit will be brought to City Council in the near future, once staff has had the opportunity to fully evaluate the potential permit cost, and the fee noticing and publication requirements have been satisfied.
Staff anticipates that the time involved to review and condition a sidewalk vending permit application will be comparable to a Track One Design Study, which has an application fee of $425. For this initial Urgency Ordinance, staff recommends a sidewalk vending permit fee of $425. The applicant would also be required to submit a business license application, which has an application fee of $379. The total cost to obtain a street vending permit and business license will be $804.
Limitation on Number of Permits
Government Code (GOV) Section 51038(b)(5) states that a local authority shall not restrict the overall number of sidewalk vendors permitted to operate within the jurisdiction of the local authority, unless the restriction is directly related to objective health, safety, or welfare concerns. Based on a random sample obtain through a sidewalk study (see Attachment 3), approximately 29% of the sidewalks in the City’s Commercial District are less than 10 feet wide. The sample also identifies that many segments of the sidewalk are less than 5 feet wide when factoring in tree wells and other amenities. An excessive number of sidewalk vendors would unreasonably interfere with the flow of pedestrians and disrupt access for person with disabilities. Additionally, the majority of the Residential District does not contain sidewalks and pedestrian access is limited to the roadway. For these reasons, a limit on the number of permits issued is necessary to protect public health, safety and welfare. Staff recommends a limit of ten (10) total permits to operate in both the Commercial and Residential Districts. The program would allow that no more than one permit be issued to an individual sidewalk vendor and only one vending receptacle is allowed per permit. Permits shall be issued in the order that they are received and deemed complete.
In addition to limiting the number of permits to operate in the Commercial and Residential Districts, the program would also allow a total of three (3) separate permits to operate in Devendorf Park. Government Code (GOV) Section 51038(b)(2)(A) states that a local authority shall not outright prohibit a sidewalk vendor from selling food or merchandise in a park owned or operated by the local authority; but may regulate the time, place, and manner of sidewalk vending in a park when necessary to ensure the public’s use and enjoyment of natural resources and to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park. Devendorf Park is only .60 acres in size, and allowing a total of three (3) permits is necessary to prevent an undue concentration of commercial activity and protect the character of the park.
Prohibited Locations
The proposed program would not allow sidewalk vending on Carmel Beach, the adjacent Scenic Pathway, or within 100 feet of the Del Mar Parking Lot. The beach is not defined as a park, but is rather a coastal resource, and the City is not required by State law to allow sidewalk vending in this area. On important note is that other coastal cities throughout California are also prohibiting vending on their beaches and adjacent boardwalks and pathways. The program would also prohibit vending in the Mission Trail Nature Preserve, which is a nature preserve and is classified as an environmentally sensitive habitat area, and is not a recreational park for which SB 946 intends to allows sidewalk vending.
The program prohibits sidewalk vending along any portion of sidewalk that is less than ten (10) feet wide. Among other limitations, the program also prohibits sidewalk vending within two-hundred (200) feet of the police station, fire station, a permitted farmers’ market, or in an area that has been permitted by the City for special event, during the duration of the event.
Limitation on Hours of Operation
GOV 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. In nonresidential areas, the proposed program would limit hours of operation for sidewalk vending from 8:00 a.m. to 9 p.m., daily, which is consistent with most business operations throughout the City.
In residential areas, hours of operation would be limited to between 9:00 a.m. and 6:00 p.m., daily. These areas tend to be more sensitive to noise and traffic impacts and, therefore, warrant a smaller operational window.
Enforcement, Penalties, and Appeals
GOV Section 51039 outlines limitations on punishing sidewalk vendors for violating parameters of the City' s program and establishes maximum fines. Violations may not be prosecuted as infractions or misdemeanors, and may only be punished by an administrative citation or permit revocation. The appeals framework provides due process for individuals who are in disagreement with an issued citation or permit revocation, and will be in accordance with procedures set forth in CMC 18.04 Enforcement.
STAFF SUMMARY:
SB 946 went into effect on January 1, 2019. For this reason, staff recommends that the City Council adopt the attached Urgency Ordinance, which will go into effect immediately and can be extended up to one year. The benefit of this Urgency Ordinance is that it provides flexibility to make changes to the program over the next year as we continue to study this issue and learn from the program.
ENVIRONMENTAL REVIEW:
The proposed Zoning Ordinance Amendment is not subject to the California Environmental Quality Act (CEQA) pursuant to the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, sections: 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment); 15060(c)(3) (the activity is not a project as defined in Section 15378); and 15061(b)(3), because the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. The proposed ordinance maintains the status quo and prevents changes in the environment. Because there is no possibility that this ordinance may have a significant adverse effect on the environment, the adoption of this ordinance is exempt from CEQA.