TO:
Honorable Mayor and Members of the City Council
THROUGH:
Bruce Moe, City Manager
FROM:
Quinn M. Barrow, City Attorney
SUBJECT: Title
Ordinance Nos. 18-0025 and 18-0025-U (1) Amending the Manhattan Beach Municipal Code to Regulate Sidewalk Vendors; and (2) Making a Determination of Exemption under CEQA (City Attorney Barrow).
a) ADOPT URGENCY ORDINANCE NO. 18-0025-U
b) INTRODUCE ORDINANCE NO. 18-0025
Line
_________________________________________________________
Recommended Action
RECOMMENDATION:
Staff recommends that the City Council adopt Ordinance No. 18-0025-U and introduce Ordinance No. 18-0025, amending the Manhattan Beach Municipal Code (MBMC) to regulate sidewalk vendors.
Body
FISCAL IMPLICATIONS:
The adoption of this ordinance has no fiscal impact. There will be costs in staff resources for the processing of applications for vending permits, however these will be offset with application fees.
BACKGROUND:
On September 17, 2018, Governor Brown signed Senate Bill (“SB”) 946, a new bill which impacts the way local jurisdictions, including the City, regulates sidewalk vendors. SB 946, informally known as the “Safe Sidewalk Vending Act,” will go into effect on January 1, 2019. If the City does not adopt the proposed ordinances, state law will govern sidewalk vending.
Under existing law, cities and counties enjoy broad authority to regulate businesses within their jurisdictions. SB 946 adds a new chapter to the California Government Code to substantially narrow that discretion with respect to sidewalk vendors by setting parameters for local regulations and prohibiting the imposition of criminal penalties. As described in the Legislature’s findings, the bill’s purpose is to promote entrepreneurship, to support immigrant and low-income communities, and to remove barriers those entrepreneurs face to accessing the formal economy. SB 946 has the following provisions:
Definition of “Sidewalk Vendors.” The new law defines “sidewalk vendors” to include any person who sells food or merchandise from a pushcart, wagon, or other non-motorized conveyance, or from his or her person, while on a public sidewalk or other pedestrian path. A sidewalk vendor may be “stationary” or “roaming.” Stationary sidewalk vendors are those who operate from a fixed location, while roaming sidewalk vendors move from place to place and stop only to complete a transaction.
State Law Preemption. SB 946 prohibits cities from adopting regulations that do any of the following:
• Restrict the overall number of sidewalk vendors allowed to operate within the jurisdiction, except if directly related to objective health, safety, or welfare concerns.
• Require sidewalk vendors to obtain the consent or approval of any nongovernmental entity or individual before selling goods or merchandise.
• Require sidewalk vendors to operate within specific parts of the public right-of-way, except if directly related to objective health, safety, or welfare concerns.
• Require sidewalk vendors to operate only in designated neighborhoods or areas, except if directly related to objective health, safety, or welfare concerns.
Time, Place, and Manner Restrictions Based Upon Health, Safety and Welfare. Cities may, however, regulate the time, place, and manner in which sidewalk vending is conducted, provided that such regulations are directly related to objective health, safety, or welfare concerns. Permissible regulations include, but are not limited to, the following:
• Limits on hours of operation, provided they are not unduly restrictive.
• Requirements to maintain sanitary conditions.
• Requirements to ensure compliance with the Americans with Disabilities Act (ADA) and other disability access standards.
• Requiring a sidewalk vending permit, business license, California Department of Tax and Fee Administration seller’s permit, and/or other licenses from other state or local agencies.
• Requiring a sidewalk vendor to submit certain information on his or her operations.
• Requiring compliance with other generally applicable laws.
SB 946 declares that perceived community animus or economic competition are not valid “objective health, safety, or welfare concerns” to justify the imposition of time, place, or manner restrictions.
Residential Neighborhoods. In areas that are zoned exclusively residential, cities must allow “roaming” sidewalk vendors, but may prohibit “stationary” sidewalk vendors.
Parks. SB 946 precludes cities from prohibiting sidewalk vendors in public parks. A limited exception is allowed where a concessionaire has been granted an exclusive concession for the sale of food or merchandise. In such a case, the city can prohibit stationary sidewalk vendors but must allow roaming sidewalk vendors.
Cities may apply additional time, place, and manner restrictions to sidewalk vending in public parks, so long as the restrictions meet at least the following criteria:
• They are directly related to health, safety or welfare concerns.
• They are necessary to ensure the public’s use and enjoyment of the park’s natural resources and recreational opportunities.
• They are necessary to prevent an undue concentration of commercial activity that would unreasonably interfere with the park’s scenic and natural character.
Farmers’ Markets, Swap Meets, and Temporary Use Permit Areas. Cities may prohibit sidewalk vendors within the immediate vicinity of permitted certified farmers’ markets, fairs, swap meets, and special events during those events’ operating hours. Similarly, sidewalk vendors can be restricted or prohibited within the immediate vicinity of an area for which the city has issued a temporary special permit, such as an encroachment permit or special event permit for filming, a parade, bike race, volleyball tournament, fair, or an outdoor concert. The prohibition on sidewalk vending can only be effective for the duration of the temporary use permit, and sidewalk vendors must be provided notice, business interruption mitigation, or any other rights that are provided to other affected businesses or property owners.
DISCUSSION:
The Proposed Ordinance.
Pursuant to the authority conferred by SB 946, the draft Ordinances contain the following provisions. In that the ordinance is essentially a brand new Chapter, there is no Legislative Digest.
Permitting
The draft Ordinance prohibits sidewalk vendors from operating without a sidewalk vending permit. Applicants must file an application, pay a processing fee, and submit a form with the following minimum information:
• The legal name and current address and telephone number of the applicant;
• If the applicant is an agent of an individual, company, partnership, corporation, or other entity, the name and business address of the principal;
• A description of the food or merchandise offered for sale;
• A description of the area(s) the applicant wishes to operate;
• Whether the applicant intends to operate as a stationary sidewalk vendor or a roaming sidewalk vendor;
• A copy of a valid business license issued pursuant to MBMC Chapter 6.01;
• A California seller’s permit number pursuant to Revenue and Taxation Code Section 6067;
• Certification by the applicant that the information contained in the application is true to his or her knowledge and belief;
• If a vendor of food or food products, certification to completion of a food handler course and proof of all required approvals from the Los Angeles County Department of Public Health and any applicable discharge permits, in compliance with MBMC Chapter 5.38; and
• Proof of liability insurance.
The draft Ordinance provides that, excepting a few narrow exceptions, applications shall be approved by the Director of Finance (Director). Permits are issued for one-year terms, and are non-transferrable.
Operating Requirements
In addition to provisions required by the SB 946 described above, the draft Ordinance includes time, manner, and place regulations that address health, safety, and welfare concerns particular to the City. To that end, the draft Ordinance prohibits sidewalk vendors from operating in certain areas of the City, including:
• Within 15 feet of any street intersection;
• Within 10 feet of any fire hydrant, fire call box, or other emergency facility;
• Within 10 feet of any curb which has been designated as white, yellow, green, blue, or red zone, or a bus zone;
• Within 10 feet of any driveway or driveway apron;
• Upon or within any roadway, median strip, or dividing section;
• Within 500 feet of a permitted certified farmers’ market, a swap meet, fair, or an area designated for a temporary special permit. This prohibition shall be limited to the operating hours of the farmers’ market or swap meet, or the limited duration of the temporary special permit;
• In any City parking lot;
• On private property without the consent of the property owner;
• On bike paths, sharrows, or bike trails, including the bike path adjacent to The Strand.
The draft Ordinance generally prohibits sidewalk vendors from operating on the public beach and pier because: 1) of the need to protect public health and safety; and 2) sidewalk vending would interfere with the public’s and other permittees’ use of the beach and pier for recreational purposes, including without limitation, fishing, swimming, bathing, and access to the Aquarium. The draft Ordinance makes exceptions in particular circumstances, such as when a sidewalk vendor is operating in accordance with a special event permit, or pursuant to MBMC Section 12.08.260. Stationary vendors are prohibited on The Strand.
Finally, the draft Ordinance provides that sidewalk vendors may not operate in a manner that blocks or obstructs the free movement of pedestrians or vehicles, and must provide a clearance of at least 3 feet on all sidewalks or pedestrian pathways to enable persons to freely pass while walking, running, or using mobility assistance devices.
Hours
The draft Ordinance generally permits sidewalk vendors to operate between the hours of 8:00 a.m. and 10:00 p.m. daily, with the following exceptions:
• In residential areas, the hours of operation are limited to 9:00 a.m. to 6:00 p.m.;
• In nonresidential areas, the hours of operation may exceed the general hours of operation if other businesses on the same street are permitted to be open;
• In parks, the hours of operation are limited to hours that parks are open to the public.
Residential Areas
As permitted by SB 946, and to protect residents from excessive noise and traffic impacts, the draft Ordinance prohibits stationary vendors from operating in areas that are zoned exclusively residential.
Parks
As permitted by SB 946, the draft Ordinance prohibits stationary sidewalk vendors from operating in parks if the park operator has an agreement for concessions that exclusively permits the sale of food or merchandise by a concessionaire.
Additional Regulations
The draft Ordinance contains additional regulations requiring that sidewalk vendors maintain insurance, prominently display required licensing, and comply with all applicable state and local laws. Sidewalk vendors must provide trash receptacles for customers and dispose of all trash generated by the vending operations within a 15 foot radius and may not leave or affix vending carts to buildings or structures while unattended.
Administrative Citations
As discussed above, SB 946 limits actions the City may take to address violations of the sidewalk vending program. The draft Ordinance includes the mandated citation amounts and options for alternative dispositions, including community service. Sidewalk vending permits may be rescinded after a fourth violation, and approvals for a new permit may be denied if an outstanding amount is owed. The draft Ordinance provides for an administrative appeal process, in accordance with MBMC Chapter 1.06.
Other Changes to the Municipal Code
In addition to the addition of Chapter 5.38 to the MBMC, the draft Ordinance contains changes to current Code provisions intended to clarify that sidewalk vendors operating in compliance with Chapter 5.38 are excepted from certain additional regulatory schemes including:
• Regulations on mobile food vendors (food trucks) set forth in Chapter 3.68
• General restrictions on commercial activities in parks set forth in Chapter 12.48
Finally, the draft Ordinance repeals in its entirety current Section 12.48.070. That Section permits the soliciting, peddling, or sale of goods, pursuant to authorization from the Chief of Police and compliance with certain additional regulations that are now preempted by the SB 946 legislation.
POLICY ALTERNATIVES:
ALTERNATIVE #1: Do not adopt the attached ordinances.
This alternative would result in the State regulations preempting local regulations.
ENVIRONMENTAL REVIEW:
The proposed text amendments are exempt from environmental review under the California Environmental Quality Act, (California Public Resources Code §§ 21000, et seq., (“CEQA”)) and the CEQA Guidelines (14 California Code of Regulations §§ 15000, et seq.) because the ordinances implement the provisions of Government Code Sections 51038 and 51039 and are therefore exempt from CEQA pursuant to Public Resources Code Section 21080.17 and California Code of Regulations Section 15282(h).
Attachments:
1. Draft Ordinance No. 18-0025-U
2. Draft Ordinance No. 18-0025