On September 17, 2018, Governor Jerry Brown signed Senate Bill 946 (SB 946), which established 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. On January 8, 2019, the City Council adopted Urgency Ordinance 2019-006, establishing the Sidewalk Vending Program. On February 5, 2019, the City Council extended the Urgency Ordinance an additional 10 months and 15 days.
Since the Urgency Ordinance was adopted, the Community Planning and Building Department has issued 13 sidewalk vendor permits; including 10 commercial/residential permits and 3 Devendorf Park permits. While we have received a number of inquiries about sidewalk vending over the past 10 months, no new applications have been accepted because the City is at the allowed cap.
The Urgency Ordinance expires on December 20, 2019. For this reason, staff recommends that the City Council extend the Urgency Ordinance an additional year, as authorized by Government Code (GOV) Section 65858(a). This would provide the City Council and staff additional time to study the issue and make decisions on a future program. The extended Urgency Ordinance will expire on December 19, 2020. No more than two extensions are permitted, therefore, this will be the last extension of the Urgency Ordinance.
STAFF ANALYSIS:
For background information on the Sidewalk Vending Program, staff has included the staff reports from the January and February 2019 City Council meetings (Attachment 2). Among other things, the Sidewalk Vending Program establishes a permitting process, identifies where sidewalk vendors can operate in the City, establishes the allowed dimensions of the vending cart, and sets a limit on the total number of permits that can be issued, as described below.
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. At the time that the Urgency Ordinance was being considered, staff studied the sidewalks throughout the downtown, and found that the average sidewalk width is approximately 6’9”, with 32% being 10 feet or wider.
Based on this information, it was determined that an excessive number of sidewalk vendors would unreasonably interfere with the flow of pedestrians and disrupt access for persons with disabilities. Additionally, the majority of the Residential District does not contain sidewalks and pedestrian access is limited to the roadway. For these reasons, the City Council limited the number of permits that can be issued to ten (10) to operate in both the Commercial and Residential Districts. The permit limits are necessary to protect public health, safety and welfare.
In addition to limiting the number of permits to operate in the Commercial and Residential Districts, the program also allows 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.
Past Year in Review
All thirteen (13) permits have been issued, the majority of which were obtained by local restaurant owners that operate from fixed locations within the City (Attachment 3). Staff has contacted the permit holders and determined that only one of them has utilized their permit. The permit belongs to an individual selling art merchandise. We have received an estimated 20 inquiries (phone, counter, email) from individuals wanting to conduct sidewalk vending in the City. In each case we have informed them that the City is currently at the cap and is not issuing any more permits at this time.
When the City Council first reviewed this issue it considered imposing a requirement that the permit holder operate a certain number of days per year or month, in order to keep the permit active. If the City Council chooses to adopt such a standard, then staff recommends that the decision be deferred until such a time that the entire Sidewalk Vending Program is studied.
Sidewalk Vending Permit Life
Under the current Sidewalk Vending Program, the thirteen (13) permits expire with the Urgency Ordinance. Staff recommends that this regulation be carried forward with the extension of the Urgency Ordinance, and that the issued permits remain valid until the Urgency Ordinance either expires or is replaced by a standard Ordinance.
Next Steps
Staff recommends that the City Council schedule a time to study the issue of sidewalk vending in the coming months, with the goal of adopting a standard ordinance. The current program establishes a substantial set of regulations intended to protect objective public health, safety and welfare, and is supported by findings. Two the primary program questions regarding the program are:
1. How can the City best issue permits in an equitable manner?
2. Should there be a requirement that the permit holder operate a set number of days in order to keep the permit active?
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.