HomeMy WebLinkAboutMC-1517Ordinance No. MC -1517
ORDINANCE NO. MC -1517
ORDINANCE OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
ADDING CHAPTER 5.30 OF TITLE 5 TO THE SAN
BERNARDINO MUNICIPAL CODE IMPOSING
REGULATIONS ON SIDEWALK VENDING
WHEREAS, the City San Bernardino, California ("City") is a charter city and municipal
corporation, duly organized under the California Constitution and laws of the State of California;
a«d
WHEREAS, pursuant to the police powers delegated to it by the California Constitution,
the City has the authority to enact laws which promote the public health, safety, and general
welfare of its citizens, including sidewalk vending, as long as these are consistent with newly
enacted Senate Bill ("SB 946"); and
WHEREAS, in 2018, the California Legislature passed SB 946 which prohibits cities
from regulating sidewalk vendors, except in accordance with the provisions of SB 946; and
WHEREAS, according to its terms, SB 946 applies to both charter and general law
cities; and
WHEREAS, SB 946 authorizes the implementation of regulations that are directly
related to objective health, safety, or welfare concerns, and that do not restrict sidewalk vendors
to operate only in a designated neighborhood or area, except as specified; and
WHEREAS, the permit requirements proposed are consistent with SB 946, as they are
reasonable, related to objective health, safety, and welfare concerns, and are based upon
compliance with other generally applicable laws including the Americans with Disabilities Act
and the City's general encroachment permit requirements for work and/or activities in the public
right of way, and
WHEREAS, the standards imposed on stationary sidewalk vendors requiring a minimum
path of accessible travel are necessary to comply with the Americans with Disabilities Act and
maintain minimum safe access along public sidewalks; and
WHEREAS, standards for maintaining access to building entrances, and not blocking
driveways, fire hydrants, parking areas and building storefront windows, are necessary to guard
the health and safety of patrons, drivers, vendors and existing business owners and promote fire
suppression and law enforcement practices that allow the City's safety personnel to observe
activities within buildings and maintain access; and
WHEREAS, the City Council finds and determines that the installation, repair,
maintenance, and removal of encroachments in the public way must be regulated in order to
protect the public health, safety, and welfare and to provide for the orderly administration and
maintenance of the public access ways for the benefit of the community, while at the same time
Ordinance No. MC -1517
allowing reasonable accommodation and cooperative flexibility for providing necessary utility
and other convenience services to the community; and
WHEREAS, the City Council finds that public and private persons who maintain and/or
install encroachments in the public way bear a responsibility to help preserve the public way and
to contribute to the administrative and liability costs incurred by the community and caused by
such encroachments; and
WHEREAS, the City Council finds that, unless properly regulated, sidewalk vending
poses a unique risk to the health, safety, and welfare of the public, including, but not limited to,
impacts to traffic, pedestrian safety, mobility, unsanitary conditions involving food preparation,
risks to children, and consumer protection; and
WHEREAS, SB 946 continues to authorize cities to prohibit sidewalk vendors in areas
located within the immediate vicinity of a permitted certified farmers' market and a permitted
swap 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 a city; and
WHEREAS, fraud or misrepresentation in the course of vending constitutes an objective
harm to the health, safety, and welfare of the City's residents; and
WHEREAS, fraud or misrepresentation in the application for the permit constitutes an
objective harm to health, safety, and welfare of the City's residents; and
WHEREAS, vending in a manner that creates a public nuisance or constitutes a danger
to the public constitutes an objective harm to the health, safety, and welfare of the City's
residents.
THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO DO
ORDAIN AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.
SECTION 2. Chapter 5.30 is hereby added to the San Bernardino Municipal Code to
read as follows:
Chapter 5.30
SIDEWALK VENDING.
Sections:
5.30.010
Purpose and Intent
5.30.020
Definitions
530.030
Permits Required
5.30.040
Review of Permit Application; Decision
5.30.050
Renewal of Sidewalk Vending Permit
5.30.060
Stationary Sidewalk Vending Locations and Standards
530.070
Sidewalk Vending in Parks, Certified Farmer's Markets
5.30.080
Roaming Sidewalk Vending
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Ordinance No. MC -1517
5.30.090
Suspension; Rescission
530.100
Appeals
530.110
Compliance with all Applicable State Laws
5.30.120
Penalties
5.30.010 Purpose and Intent
The vending of prepared or pre-packaged foods, goods, and/or wares at semi-permanent
locations on public sidewalks and rights-of-way may pose unsafe conditions and special dangers
to the public health, safety, and welfare of residents and visitors. The purpose of this Chapter is
to implement regulations on both roaming and stationary sidewalk vending that protect the
public health, safety, and welfare of the community while complying with the requirements of
general state law, as amended from time to time, to promote safe vending practices, prevent
safety, traffic, and health hazards, and preserve the public peace, safety, and welfare of the
community.
5.30.020 Definitions.
For purposes of this Chapter, the following definitions apply:
A. "Agricultural Products" means agricultural, horticultural, viticultural, and dairy products,
livestock and the products thereof, the products of poultry and bee raising, the edible
products of forestry, and any and all products raised or produced on farms and processed
or manufactured products thereof. Agricultural products does not include cannabis or
cannabis products.
B. "Certified Famers' 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.
C. "City" means the City of San Bernardino.
D. "County" means the County of San Bernardino.
E. "Park" means a public park owned by the City.
F. "Director of Finance" means the Director of Finance or his or her designee.
G. "Roaming sidewalk vendor or vending" means a sidewalk vendor who moves from place
to place and stops only to complete a transaction.
H. "Sidewalk vendor or vending" means a person who sells, offers to sell, operates, engages
in, or carries on a food or merchandise vending business from a pushcart, stand, display,
pedal -driven cart, wagon, showcase, rack, or other non -motorized conveyance, or from
one's person, upon a public sidewalk, property, or other pedestrian path.
I. "Stationary Sidewalk Vendor" means a person who sells, offers to sell, operates, engages
in, or carries on a food or merchandise vending business from a fixed location without
assistance from a transport.
Ordinance No. MC -1517
J. "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.
K. "Temporary Event Permit" means any use as permitted under Chapter 19.70.
5.30.030 Permits Required
A. All sidewalk vendors shall obtain a sidewalk vending permit from the City's Business
Registration Division prior to engaging in any sidewalk vending activities. The following
information shall be required:
1. Name, current mailing address, and phone number of the vendor; and
2. If the vendor is an agent of an individual, company, partnership, or corporation,
the name and business address of the principal; and
3. A description of the merchandise/goods to be offered for sale or exchange, and
the days/hours of sales; and
4. A copy of the California seller's permit with the sales tax number issued by the
California Department of Tax and Fee Administration to the vendor; and
5. The vendor must present a valid identification, such as a State of California
identification, Matricula Consular or any other government -issued identification
card; and
6. If preparing or selling food, a copy of a current County Public Health Department
permit issued to the vendor; and
7. If vendor is selling food, a current decal sticker posted on the food cart issued by
the County Public Health Department; and
8. If the vendor proposes to be a sidewalk vendor, a description or site plan map of
the proposed location(s) where vending will take place, showing that the sidewalk
location maintains a minimum of thirty-six inches (36") of accessible route area,
in compliance with the Americans with Disabilities Act; and
9. If the vendor proposes to be a sidewalk vendor, an encroachment permit pursuant
to Section 12.03.060 of the San Bernardino Municipal Code; and
10. A copy of general liability policy naming the City as additional insured in the
amount of $1,000,000
11. A certification by the vendor that to his or her knowledge and belief, the
information contained in the application is true.
B. At the time the application or renewal application is filed, the application shall pay the
permit processing fee established by separate resolution of the City Council.
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Ordinance No. MC -1517
5.30.040 Review of Permit Application; Decision
A. The Director of Finance may deny an application for a permit if he or she makes any of
the following findings:
1. The applicant has failed to pay the application permit fee.
2. The applicant has made one or more material misstatements in the application for
a permit.
3. The applicant's vending operation, as described in the application, is inconsistent
with the standards, conditions, and requirements of this Chapter.
4. It is determined that the applicant does not possess all federal, state, and local
permits and licenses necessary to engage in the activity in which he or she seeks
to engage.
B. If the application is denied, the reasons for disapproval shall be noted on the application,
and the applicant shall be notified that his or her application is denied and that no permit
will be issued. Notice shall be mailed to the applicant at the address shown on the
application form.
C. If the Director of Finance approves the applicant's permit, he or she shall endorse his or
her approval on the application and shall, upon payment of the prescribed fee, deliver the
permit to the applicant.
D. Exemptions. A sidewalk vending permit shall not be required for the following activities:
1. The sale of agriculture products on the site where the product is grown. As
defined in 5.30.020(A) agriculture products does not include cannabis. Sale of
cannabis products must adhere to regulations as stipulated in Chapter 5.10 of the
Municipal Code.
2. Catering for private parties held exclusively on private property and not open to
the general public.
3. Events permitted pursuant to a lawfully issued temporary event permit including
but not limited to a Certified Farmers' Market, Swap Meet, street fairs, outdoor
concerts, sport league opening day, and business sidewalk sales.
E. Term of permit. A sidewalk vending permit issued pursuant to this Chapter shall
automatically expire one (1) year from the date issued, unless an earlier expiration date is
noted on the permit.
F. Transferability. A sidewalk vending permit shall not be transferable to any other entity
or person and is valid only as to the original applicant for the term stated.
5.30.050 Renewal of Sidewalk Vending Permit
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Ordinance No. MC -1517
All sidewalk vendors shall annually apply for renewal of their Sidewalk Vending Permit from
the City's Director of Finance prior to continuing to engage in any sidewalk vending activities.
Any sidewalk vendor who currently possesses a Sidewalk Vending Permit allowing them to
operate a vending operation must, upon time of renewal of their license, apply for a Sidewalk
Vending Permit, supplying the information as required in section 5.30.030 of this Division.
5.30.060 Stationary Sidewalk Vending Locations and Standards
A. Stationary sidewalk vendors shall be prohibited from operating or establishing in any
residential zone of the City. Stationary sidewalk vendors may operate in non-residential
zones of the City, including mixed use zones, provided they meet the following:
1. The sidewalk vendor is duly licensed and meets all requirements of section
5.30.030; and
2. The sidewalk vendor can set up their vending operation while still leaving a
minimum of thirty-six inches (36") of accessible path of travel, without
obstruction, along the public sidewalk or public pathway; and
3. If the sidewalk vendor is selling food, the sidewalk vendor shall display a valid
Health Permit issued by the County in a conspicuous location on the food cart;
and
4. If the sidewalk vendor is selling food, all employees shall possess a current food
handlers card, issued by the County; and
5. Sidewalk vendor food cart shall possess a current decal sticker posted on the food
cart; and
6. Sidewalk vending hours shall be conducted between the hours of 8:00 am. and
3:00 am. the following day, and
7. The sidewalk vendor maintains the vending area in a clean, orderly, and sanitary
condition; and
8. The sidewalk vendor location does not block entrances to private buildings,
private driveways, parking spaces or building windows; and
9. No vending shall occur within ten (10) feet of a fire hydrant, fire escape, bus stop,
loading zone, handicapped parking space or access ramp, fire station driveway, or
police station driveway; and
10. No tables, chairs, fences, shade structures, other site furniture, or any freestanding
signs shall be permitted in conjunction with the vendors vending activities; and
11. The vendor shall not attach or use any water lines, electrical lines, or gas lines
during vending operations; and
12. Exterior storage or display of refuse, equipment, materials, goods, wares, or
merchandise associated with the vendor is prohibited; and
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Ordinance No. MC -1517
13. No vending shall occur within the immediate vicinity of a Certified Farmers'
Market, a Swap Meet, or an event held pursuant to a Temporary Event Permit;
and
14. The sidewalk vendor shall not discharge any liquid (e.g. water, grease, oil, etc.)
onto or into the city streets, storm drains, catch basins, or sewer facilities. All
discharges shall be contained and properly disposed of by the vendor.
5.30.070 Sidewalk Vending in Parks, Certified Farmer's Markets
A. Sidewalk vending of food or merchandise by roaming or stationary vendors shall be
prohibited in any City Park with a concession stand operated by a vendor under exclusive
contract with the City selling similar food or merchandise or in an area occupied by a
Certified Farmer's Market.
B. Subject to section 5.30.070(A), sidewalk vendors may operate in City Parks provided
they meet the following:
1. The sidewalk vendor is duly licensed and meets all requirements of section
5.30.030(A); and
2. For stationary sidewalk vending, the sidewalk vendor can set up their vending
operation while still leaving a minimum of thirty-six inches (36") of accessible
path of travel, without obstruction, along the public sidewalk or public pathway;
and
3. The sidewalk vendor shall cease operations one (1) hour prior to the close of the
park; and
4. The sidewalk vendor maintains the vending area in a clean, orderly, and sanitary
condition; and
5. If the sidewalk vendor is selling food, the sidewalk vendor shall display a valid
Health Permit issued by the County in a conspicuous location on the food cart;
and
6. If the sidewalk vendor is selling food, all employees shall possess a current food
handlers card, issued by the County; and
7. Sidewalk vendor food cart shall possess a current decal sticker posted on the food
cart; and
8. The sidewalk vendor location does not block entrances to buildings, driveways,
parking spaces, or building windows; and
9. No vending shall occur within the immediate vicinity of an event held pursuant to
a Temporary Event Permit; and
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Ordinance No. MC -1517
10. In City Parks that are located within a residential zone, where stationary sidewalk
vending is prohibited, as described in Section 5.30.070(A) of this Chapter, only
roaming sidewalk vendors shall be allowed in such Parks; and
11. The City can impose regulations to limit the number of Sidewalk Vendors in City
Parks to limit the undue concentration of commercial activity that unreasonable
interferes with the scenic and natural character of the park or necessary to endure
the public's use and enjoyment of the natural resources and recreational
opportunities of City parks.
5.30.080 Roaming Sidewalk Vending
A. Roaming sidewalk vendors shall meet the following:
1. The sidewalk vendor is duly licensed and meets all requirements of section
5.30.030(A); and
2. If the sidewalk vendor is selling food, the sidewalk vendor shall display a valid
Health Permit issued by the County in a conspicuous location on the food cart;
and
3. If the sidewalk vendor is selling food, all employees shall possess a current food
handlers card, issued by the County; and
4. Sidewalk vendor food cart shall possess a current decal sticker posted on the food
cart; and
5. Sidewalk vending hours for residential zones shall be conducted between the
hours of 8:00 a.m. and 8:00 p.m.; and
6. Sidewalk vending hours for non-residential zones shall be conducted between the
hours of 8:00 a.m. and 8:00 p.m. of every day, and
7. The sidewalk vendor maintains their temporary vending area in a clean, orderly,
and sanitary condition; and
8. The sidewalk vendor does not block entrances to buildings, driveways, parking
spaces, or building windows; and
9. The sidewalk vendor does not conduct sales from a public street; and
10. No vending shall occur within the immediate vicinity of a Certified Farmers'
Market, a Swap Meet, or an event held pursuant to a Temporary Event Permit;
and
11. The vendor shall not discharge any liquid (e.g. water, grease, oil, etc.) onto or into
city streets, storm drains, catch basins, or sewer facilities. All discharges shall be
contained and properly disposed of by the vendor.
5.30.100 Suspension; Rescission
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Ordinance No. MC -1517
A. A sidewalk vendor permit issued under this Chapter may be suspended or rescinded by
the Director of Finance after four or more violations of this Chapter, for any of the
following causes:
1. Fraud or misrepresentation in the course of vending;
2. Fraud or misrepresentation in the application for the permit;
3. Vending in a manner that creates a public nuisance or constitutes a danger to the
public.
B. Notice of the suspension or rescission of a sidewalk vendor permit issued under this
Chapter shall be mailed, postage prepaid, to the holder of the sidewalk vendor permit at
his or her last known address.
C. No person whose street vending permit has been revoked pursuant to this chapter shall be
issued a street vending permit for a period of two (2) years from the date revocation
becomes final.
5.30.110 Appeals
In the event that any applicant or permittee desires to appeal from any order, rescission, or other
ruling of the Director of Finance, made under the provisions of this Chapter, such applicant or
any other person aggrieved shall have the right to appeal such action or decision in accordance
with section 8.30.030.
5.30.120 Compliance with all Applicable State Laws
It is the intent of this Chapter to regulate sidewalk street vendors in compliance with all
provisions of the Safe Sidewalk Vending Act. It is also the intent of this provision for sidewalk
vendors to comply with all applicable state and local laws.
5.30.130 Penalties
A. It is unlawful for any person to violate any provision or fail to comply with any
requirements of this Chapter. A violation of this Chapter shall by punished by:
1. An administrative fine not exceeding $100 for a first violation.
2. An administrative fine not exceeding $200 for a second violation within one (1)
year of the first violation.
3. An administrative fine not exceeding $500 for each additional violation within
one (1) year of the first violation.
B. A violation of vending without a sidewalk vending permit may, in lieu of the penalties set
forth in subsection (A) set forth above, be punished by:
1. An administrative fine not exceeding two hundred fifty ($250) dollars for a first
violation.
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Ordinance No. MC -1517
2. An administrative fine not exceeding five hundred dollars ($500) for a second
violation within one (1) year of the first violation.
3. An administrative fine not exceeding one thousand dollars ($1,000) for each
additional violation within one (1) year of the first violation.
C. If an individual is subject to subsection (B), set forth above, for vending without a
sidewalk vending permit, upon the individual providing proof of a valid permit issued by
the City, the administrative fines set forth in this Chapter shall be reduced to the
administrative fines set forth in subsection (A), respectively.
D. The proceeds of any administrative fines assessed pursuant to this Chapter shall be
deposited in the treasury of the City.
E. Failure to pay an administrative fine assessed under this Chapter shall not be punishable
as an infraction or misdemeanor. Additional fines, fees, assessments, or any other
financial conditions beyond those authorized in this Chapter shall not be assessed.
F. Any violation of this Chapter shall not be punishable as an infraction or misdemeanor,
and any person alleged to have violated any provisions of this Chapter shall not be
subject to arrest except when otherwise permitted under law.
G. When assessing an administrative fine pursuant to this Chapter, the adjudicator shall take
into consideration the person's ability to pay the fine. The City 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.
1. If the person meets the criteria described in subdivision (a) or (b) of Government
Code section 68632, the City shall accept, in full satisfaction, twenty (20) percent
of the administrative fine imposed pursuant to this Chapter.
2. The City 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. 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
SB 946 had SB 946 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. "
SECTION 3. Effective Date. This Ordinance shall take effect thirty (30) days after its
adoption.
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Ordinance No. MC -1517
SECTION 4. Severability. If any section, subsection, subdivision, paragraph, sentence,
clause or phrase of this ordinance, or any part thereof, is for any reason held to be
unconstitutional, such decision shall not affect the validity of the remaining portion of this
Ordinance or any part thereof. The City Council hereby declares that it would have passed each
section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the
fact that any one or more section, subsection, subdivision, paragraph, sentence, clause or phrase
be declared unconstitutional. If for any reason any portion of this ordinance is found to be
invalid by a court of competent jurisdiction, the balance of this ordinance shall not be affected.
SECTION 5. Certification. City Clerk of the City of San Bernardino shall certify to the
adoption of this Ordinance and cause publication to occur in a newspaper of general circulation
and published and circulated in the City in a manner permitted under section 36933 of the
Government Code of the State of California.
SECTION 6. CEQA. The City Council finds that 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.
APPROVED and ADOPTED by the City MOuJil ark Signed by the Mayor and attested
by the City Clerk this 19th day of May 2019. f f J
Attest:
Georgeann arena, MM City Clerk
Approved as to form:
Gary D. Saenz, City Attorney
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John Valdivia, Mayor
City of San Bernardino
Ordinance No. MC -1517
CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of
Ordinance No. MC -1517, introduced by the City Council of the City of San Bernardino,
California, at a regular meeting held the 5d` day of June 2019 and approved, passed, and adopted
at a regular meeting held the I SP day of June 2019 by the following vote:
Council Members:
AYES NAYS
SANCHEZ
x
IBARRA
x
VACANT
X
SHORETT
NICKEL x
RICHARD X
MULVIHILL
ABSTAIN ABSENT
WITNESS my hand and official seal of the Cityof San Bernardino this 19'b day of June 2019.
Georgeann H14ina, MMC,ity Clerk
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