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c�<,FORN'P City Council Staff Report
January 22, 2019
Agenda Item No. 12
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Dan Matusiewicz, Finance Director - 949-644-3123,
dmatusiewicz@newportbeachca.gov
PREPARED BY: Theresa Schweitzer, Senior Accountant,
tschweitzer@newportbeachca.gov
PHONE: 949-644-3140
TITLE: Sidewalk Vending Permit Application Fee
ABSTRACT -
Senate Bill (SB) 946, effective January 1, 2019, established statewide governance of
vending in the public right-of-way and on public parks. In preparation, staff created a
program to regulate and permit sidewalk vending consistent with SB 946, introduced as
Ordinance No. 2018-19 on November 13, 2018, and subsequently adopted on
November 27, 2018. Staff would like to establish a user service fee to recover the cost of
City staff time processing the sidewalk vending permit application. The proposed fee is
$155 and would be effective immediately upon adoption of the resolution.
RECOMMENDATION:
a) Conduct a public hearing to receive comments on the Sidewalk Vending Permit
Application fee;
b) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
c) Adopt Resolution No. 2019-4, A Resolution of the City Council of the City of Newport
Beach, California, Adopting the Sidewalk Vending Permit Application Fee within the
Schedule of Rents, Fines, and Fees.
FUNDING REQUIREMENTS:
Cost recovery, or revenue estimates, related to this fee are unknown at this time due to
the uncertain number of permit applications the City will receive.
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Sidewalk Vending Permit Application Fee
January 22, 2019
Page 2
DISCUSSION:
On September 17, 2018, Governor Jerry Brown signed SB 946, which established
statewide governance of vending in the public right-of-way and parks. The City Council
wished to regulate sidewalk vending consistent with SB 946. Ordinance No. 2018-19
created Newport Beach Municipal Code Chapter 5.97 (Sidewalk Vending Program),
establishing a permitting program and regulations. The staff reports and attachments from
the introduction and adoption of Ordinance No. 2018-19 can be found as Attachments B
and C, respectively.
The Newport Beach Municipal Code (NBMC) Section 3.36, City Council Policy F-4
(Revenue Measures) and Item 12 of the Fiscal Sustainability Plan (FSP) provide staff and
the City Council with policy guidance related to setting cost recovery targets and updating
user fees. User fees, or cost -of -service fees are charged to a private citizen or group for
services performed or provided by a government agency on their behalf. If the service
benefits primarily an individual or group of people, then the burden of that cost should be
borne by the person receiving the benefit.
NBMC Section 3.36 sets the cost recovery for user fees at one hundred percent (100%)
with the exception of the subsidized fees listed in Exhibit "A" of that same section, as well
as those limited by California or Federal statutes. A recommendation for less than a
hundred percent (100%) cost recovery rate occurs, for example, when a service is
beneficial to the community at large along with specific individuals or groups, and/or when
there is an economic incentive, or disincentive, to do so. In these cases, the General Fund
is essentially subsidizing the service.
The Revenue Division will issue a permit to a sidewalk vendor when all requirements are
satisfied. Permit administration costs will be recovered through the Sidewalk Vending
Permit Application fee. MGT of America, the City's fee study consultant, recommended
that staff propose a conservative flat fee based on a professional estimate of time to be
spent on the permit process since there is no sidewalk vending permit history to evaluate.
The studied fee is proposed at $155, which includes 35 minutes of the Licensing
Supervisor's time and 43 minutes of Fiscal Clerk time.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action 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.
12-2
Sidewalk Vending Permit Application Fee
January 22, 2019
Page 3
NOTICING:
The agenda item has been noticed according to Government Code Section 66018(a) (two
publications with at least five days intervening between the two dates), Government Code
Section 66016(a) (notice mailed at least 14 days prior to the meeting to any interested
party who files a written request) (mailed notice to Building Industry Association of
Southern California, AT&T, Southern California Edison, and Southern California Gas
Company on December 11, 2018), and the Brown Act (72 hours in advance of the meeting
at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Resolution No. 2019-4
Attachment B — November 13, 2018 Staff Report — Introducing Ordinance No. 2018-19
Related to Sidewalk Vending
Attachment C — November 27, 2018 Staff Report — Second Reading and Adoption of
Ordinance No. 2018-19 Related to Sidewalk Vending
12-3
ATTACHMENT A
RESOLUTION NO. 2019-4
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, ADOPTING THE
SIDEWALK VENDING PERMIT APPLICATION FEE WITHIN
THE SCHEDULE OF RENTS, FINES, AND FEES
WHEREAS, on September 17, 2018, California Governor Jerry Brown signed
Senate Bill ("SB") 946 into law, which goes into effect January 1, 2019, and regulates
sidewalk vendors throughout the state, including within the City of Newport Beach ("City");
WHEREAS, on November 27, 2018, the City Council adopted Ordinance No.
2018-19, creating a local program to regulate and permit sidewalk vending in compliance
with the parameters established by SB 946;
WHEREAS, Ordinance No. 2018-19 created Newport Beach Municipal Code
("NBMC") Section 5.97.030(C), allowing the City Council to establish a fee for processing
sidewalk vendor permit applications;
WHEREAS, Newport Beach Municipal Code ("NBMC") Section 3.36.010 provides
that services and programs that primarily benefit a person requesting the service are
traditionally funded in whole or in part from fees charged to the person who initiates the
service;
WHEREAS, NBMC Section 3.36.030(A) provides that, subject to some express
exceptions, the cost recovery percentage for user services shall be one hundred percent
(100%);
WHEREAS, in 2010, the City retained MGT of America, Inc. ("MGT") to prepare
cost allocation plan and cost -of -services studies for City services ("Agreement");
WHEREAS, pursuant to the Agreement, MGT has conducted cost -of -services
studies on a rotating basis by department; and
WHEREAS, MGT determined the cost incurred by the City for processing permit
applications related to sidewalk vending ("Services").
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows -
12 -4
Resolution No. 2019-4
Page 2 of 3
Section 1: The City Council hereby revises the Schedule of Rents, Fines, and
Fees ("SRFF"), in part, as depicted in Exhibit 1, attached hereto and incorporated herein
by reference. Except where prohibited by law, all fees provided shall be rounded down
to the nearest dollar. Except as expressly revised by Exhibit 1, all other provisions of the
SRFF shall continue in full force and effect.
Section 2: The recitals provided in this resolution are true and correct and are
incorporated into the operative portion of this resolution.
Section 3: If any section, subsection, sentence, clause or phrase of this
resolution is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution and each section,
subsection, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses or phrases be declared unconstitutional.
Section 4: The City Council finds the adoption of this resolution and revisions to
the SRFF are 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 resolution and all proposed fees and rents shall take effect thirty
(30) days following adoption of this resolution, and the City Clerk shall certify the vote
adopting the resolution.
ADOPTED this 22nd day of January, 2019.
Diane B. Dixon
Mayor
12-5
Resolution No. 2019-4
Page 3 of 3
ATTEST:
Leilani I. Brown
City Clerk
AIR' ED AS TO FO M:
CITY A ORNEY'S O ICE
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AqM6C. Harp
Cit Attorney
Attachment: Exhibit 1— Revision to the Schedule of Rents, Fines, and Fees –
Sidewalk Vending Permit Application Fee
12-6
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12-7
TO:
FROM:
CITY OF
NEWPORT BEACH
City Council Staff Report
PREPARED BY:
PHONE:
TITLE:
ABSTRACT:
ATTACHMENT B
November 13, 2018
Agenda Item No. 13
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
Benjamin M. Zdeba, AICP, Associate Planner
949-644-3253
An Ordinance Creating a Sidewalk Vending Program in Compliance
with California Senate Bill 946
On September 17, 2018, Governor Jerry Brown signed Senate Bill 946, Lara (SB 946),
which establishes statewide governance of vending in the public right-of-way and parks.
The bill will go into effect on January 1, 2019. Local jurisdictions that wish to regulate
sidewalk vending are required to first adopt a program with rules and regulations
consistent with SB 946. Staff has drafted the attached ordinance (Attachment A)
establishing a program to permit and regulate sidewalk vendors in compliance with SB 946.
RECOMMENDATION:
a) Find this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance
No. 2018-19, An Ordinance of the City Council of the City of Newport Beach,
California, Creating a Program to Regulate and Permit Sidewalk Vending Pursuant to
California Senate Bill 946, and pass to second reading on November 27, 2018.
FUNDING REQUIREMENTS:
There is no direct fiscal impact related to this item. There may be indirect costs associated
with additional enforcement. Costs associated with issuance and administration of a
sidewalk vendor permit are proposed to be recovered through a fee.
12-8
An Ordinance Creating a Sidewalk Vending Program in
Compliance with California Senate Bill 946
November 13, 2018
Page 2
BACKGROUND:
Senate Bill 946 establishes statewide governance of vending in the public right-of-way
and on public parks. Portions of the Newport Beach Municipal Code (NBMC) are
presently in conflict with the requirements of SB 946. If the City Council wishes to regulate
sidewalk vending', the City's rules and regulations must be consistent with SB 946.
In order to ensure the City can properly regulate sidewalk vendors by the effective date
of SB 946, the NBMC must be amended at least 30 days prior to January 1, 2019.
DISCUSSION:
The draft ordinance establishes NBMC Chapter 5.97 as the Sidewalk Vending Program.
The proposed program is consistent with SB 946 in that it facilitates the entrepreneurial
spirit of small business activities by removing total prohibition on selling goods from
portable stands. While encouraging more sidewalk vending, the City equally recognizes
the importance of regulation and enforcement of sidewalk vendor activities to promote the
health, safety, and welfare of the public.
The City's proposed program includes regulations that are necessary to:
1) Ensure no interference with:
a) The performance of police, firefighter, lifeguard and emergency medical
personnel services;
b) 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, restrooms, trash receptacles,
firefighting apparatus, mailboxes, as well as access to locations used for public
transportation services;
3) Maximize public access to and along the coast;
4) Reduce exposure to the City for personal injury or property damage claims and
litigation; and
5) Ensure sidewalk vending activities only occur in locations where such vending
activities would not restrict sidewalk and pathway access and enjoyment to
individuals with disabilities.
Sidewalk vendors are individuals that sell goods on streets and sidewalks from carts or other non -
motorized conveyances. Sidewalk vendors can be either stationary (i.e., set up in one place) or roaming
(i.e., moving until stopping to make a transaction).
12-9
An Ordinance Creating a Sidewalk Vending Program in
Compliance with California Senate Bill 946
November 13, 2018
Page 3
The following sections provide an overview of some of the rules and regulations put in
place by the 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.
Consistent with SB 946, the City's proposed program would require a valid permit to
engage in any sidewalk vendor activities. A permit enables the City to effectively regulate
individuals who are engaging in sidewalk vending activities. It would further help to ensure
sidewalk vendors are complying equally with the rules and regulations set forth by the
program.
The Revenue Division will issue a permit to a sidewalk vendor when the requirements in
Attachment C are satisfied. Permit administration costs will be recovered through the
permit fees. MGT, the City's fee study consultant, recommended, because there is no
sidewalk vending permit history, staff propose a conservative flat fee based on a
professional estimate of time to be spent on the permit process. The studied fee is
$155.00, and includes 35 minutes of the Licensing Supervisor's time and 43 minutes of
Fiscal Clerk time. Staff intends to bring the new fee resolution to City Council in the near
future, after the fee noticing and publication requirements have been satisfied.
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 7 a.m. to 10 p.m., daily, which is consistent with most business operations
throughout the City. NBMC Title 20 (Planning and Zoning) considers a business with a
closing hour beyond 11 p.m. as a late -hour operation, a use subject to a discretionary
review process. The proposed limitation is comparable and further takes into account the
potential for sidewalk vending in mixed-use areas, which have both residential and
nonresidential uses.
In residential areas, hours of operation would be limited to between 8 a.m. and 9 p.m.,
daily. These areas tend to be more sensitive to noise and traffic impacts and, therefore,
warrant a smaller operational window. These hours are also the same as allowed within
NBMC Chapter 5.42 for Solicitation.
12-10
An Ordinance Creating a Sidewalk Vending Program in
Compliance with California Senate Bill 946
November 13, 2018
Page 4
Uniquely Prohibited Locations
GOV 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.
With a permanent population of approximately 86,000 residents that swells to well over
100,000 residents during the summer months, the City is a tourism hot spot. Each year,
the City ensures the safety of at least 10 million beach visitors. These visitors frequent
several unique locations and rely heavily on the public right-of-way in these areas to travel
from place to place in a safe manner. Obstructions of the use of the right-of-way could
pose a health and safety concern, especially in the locations that are most heavily used.
The following table summarizes the proposed excluded locations and why it is necessary
to prohibit sidewalk vending at each of them.
Location
Why is it necessary?
The Balboa Peninsula Boardwalk
This Boardwalk right-of-way is under twelve (12) feet in
width in some places and has a centerline, which provides
for a high volume of pedestrians, bicyclists, and roller -
skaters to travel in each direction. This necessitates
restrictions on sidewalk vending along the boardwalk to
ensure safety and protect the public from potential injury.
The Boardwalk is also identified by the City's certified Local
Coastal Program as providing public lateral access along
the Balboa Peninsula shoreline.
The Balboa Island Walking Trail
The Balboa Island walking trail is extremely narrow and has
a high volume of pedestrians traveling in each direction.
This necessitates restrictions on sidewalk vending on the
walking trail to protect the public from injury. The walking
trail is also identified in the City's certified Local Coastal
Program as providing public lateral access along the Balboa
Island shoreline.
East Balboa Boulevard, between
These locations are extremely popular tourist destinations
Adams and A Street; Marine
with unusually high pedestrian and vehicular traffic
Avenue on Balboa Island; Coast
volumes. This necessitates restrictions on sidewalk vending
Highway, between Avocado
to protect the public from injury. It is important to minimize
Avenue and Hazel Drive
any interference and allow a clear exit path from the
commercial businesses to exit on to the public sidewalk.
2 The Balboa Peninsula Boardwalk runs along the beach for approximately three (3) miles from 361h Street
in West Newport to F Street on the Peninsula.
12-11
An Ordinance Creating a Sidewalk Vending Program in
Compliance with California Senate Bill 946
The Civic Center
Any public property that does not
meet the definition of a sidewalk or
pathway including, but not limited to,
any alley, beach, pier, square,
street, street end, or parking lot
November 13, 2018
Page 5
The Newport Beach Civic Center is central to all civic duties.
It is home to the City's Emergency Operations Center
(EOC), which could be activated at any time to manage
critical resources in an emergency situation. It also has
offices for many key Fire and Life Safety personnel, who
may need to leave in a moment's notice. It is important that
the pathways leading to and from the Civic Center grounds
remain generally free and clear of any obstructions for
ensuring public safety. In addition, the turnaround areas at
the entry from Avocado Avenue must always remain
generally accessible, as emergency vehicles cannot access
the parking structure. In an emergency, uninhibited access
from the entry turnaround to the library entrance is
imperative.
As defined by SB 946, a "sidewalk vendor" means a person
or person(s) who sells food or merchandise from a sidewalk
vending receptacle or from one's person, upon a public
sidewalk or pathway.
Additional Locational Restrictions
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. The
majority of the City is fully developed with a diverse mixture of residential, institutional,
commercial, industrial, and recreational and open space uses.
Many of the sidewalks within the City are narrow with a width of less than eight (8) feet.
Given the amount of pedestrian activity, much of the public realm has been improved with
public -serving amenities, such as trash receptacles, benches, bike racks, and street
trees. The diverse mixture of land uses on small -lot subdivisions (i.e., 30 feet wide or less)
creates a heavily traveled environment with measures in place, such as color -coded curb
zones, to help ensure the safety and welfare of the public.
The following table summarizes the additional locational restrictions and why it is
necessary to have these restrictions in place to ensure public health, safety and welfare.
Restriction
At least 200 feet from a police
station, fire station, lifeguard tower,
or lifeguard headquarters
At least 200 feet from any certified
farmers' market or swap meet
At least 200 feet from a temporary
special event permit location
_ Why is it necessary?
These facilities are high in activity with emergency services
personnel activated and entering or exiting the facilities
during an emergency. Unimpaired access is necessary to
ensure public health and safety services are provided
whenever they are needed.
Consistent with GOV Section 51038(d)(1), which allows a
prohibition of sidewalk vendors in the immediate vicinity of
such permitted activities.
Consistent with GOV Section 51038(d)(2), which allows a
prohibition of sidewalk vendors in the immediate vicinity of
such permitted activities.
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An Ordinance Creating a Sidewalk Vending Program in
Compliance with California Senate Bill 946
November 13, 2018
Page 6
At least 100 feet from other sidewalk A concentration of sidewalk vendors in a single area poses
vendors a safety hazard and may limit accessibility for pedestrians;
thus, affecting the flow of the right-of-way.
At least 100 feet from any public or These land uses are sensitive receptors to noise and any
private schools, places of worship, activity that is disruptive to day-to-day operations and the
or a large general child daycare overall welfare of said uses. In addition, any queuing in front
facility of a school can pose a safety issue with children entering
and exiting before and after school. Adjacency of sidewalk
vendors near these uses could also attract children off-site.
At least 100 feet from any This restriction helps to ensure there are limited
intersection of a street and a obstructions adjacent to a street intersection. Such
sidewalk obstructions could impede vehicular sight lines and would
pose a safety issue for pedestrians and drivers alike.
At least 100 feet from any public Adjacency of sidewalk vendors near these uses could
picnic area, playground area or attract children off-site and poses a safety issue.
playground equipment
At least 100 feet from any public
community center, pier, athletic
field, sailing center
softball/baseball diamond
basketball court, handball court
pickleball court, tennis court, socce
field, or volleyball court
At least 100 feet from any publi
marina
These areas are all intended to encourage physical activity
and public health and welfare. If not properly regulated,
sidewalk vendors could pose an interruption to the intended
use.
c Any potential overcrowding due to queuing within the
marina may interfere with accessibility to and from boating
vessels. A concentration of sidewalk vendors and/or similar
functions in a single area pose a safety hazard and may
limit accessibility for pedestrians; thus, affecting the flow of
the right-of-way. In addition, additional obstructions can
pose a safety threat with slipping and falling into the water.
At least 100 feet from the portion of A concentration of sidewalk vendors and/or similar
any City facility that is renting functions in a single area pose a safety hazard and may
merchandise or selling food to the limit accessibility for pedestrians; thus, affecting the flow of
public or where the rental the right-of-way. Furthermore, these facilities often rent
merchandise is stored watercraft and larger equipment. An unobstructed pathway
next to the facility is inherent to its operation.
At least 100 feet from any police Public safety is of utmost importance. In the event any
officer, firefighter, lifeguard or emergency services personnel or vehicles are activated in
emergency medical personnel who an area, it is imperative that potential conflicts are
are actively performing their duties minimized to the greatest extent feasible as to prevent any
or providing services to the public access conflict.
At least 25 feet from any fire hydrant In the event of an emergency and for regular maintenance,
the Fire Department needs to have constant, uninhibited
access to hydrants citywide. Adequate space must always
be provided to allow for an apparatus (i.e., fire truck) to
access the hydrant.
12-13
An Ordinance Creating a Sidewalk Vending Program in
Compliance with California Senate Bill 946
At least 25 feet from any curb, which
has been designated as white,
yellow, green, blue, or red zone, or
a bus zone
At least 25 feet from any automated
teller machine (ATM)
At least 25 feet from any driveway,
alley or entrance to a parking lot or
parking garage
At least 25 feet from any entrance or'
exit to a building, structure or facility
At least 25 feet from any trash
receptacle, bike rack, bench, bus
stop or similar public use item
Sidewalks and pathways must be at
least 8 feet in width or larger
Stationary sidewalk vendors not
permitted in any park where City
has signed an agreement for
concessions that exclusively
permits sale of food or merchandise
by a single concessionaire
Stationary sidewalk vendors not
permitted in any exclusively
residential area
November 13, 2018
Page 7
These curb and public right-of-way areas have been
designated as special use zones dependent upon the color
of the curb. Allowing sidewalk vendors to operate in these
special use zones could pose as an obstruction inconsistent
with the intended restrictions. For example, a sidewalk
vendor in a red zone could hinder emergency access or a
sidewalk vendor in a yellow zone could hinder loading and
unloading.
ATMs are frequently used, especially in areas with a healthy
tourism industry. This restriction will help to limit conflicts
between sidewalk vendors and patrons of the ATM who
may also be queuing. It will also limit obstructions to the
public right-of-way that negatively affect accessibility.
Allowing sidewalk vending operations within 25 feet from
any driveway, alley, or entrance to a parking lot or parking
garage could potentially pose a safety issue by obstructing
vehicular line of sight while obstructing vehicular access or
allowing queuing that encroach into vehicular driveway.
Allowing sidewalk vending operations within 25 feet from
any entrance or exit could result in inadequate access to
the building or inadequate egress from the building in an
emergency situation. An ADA accessible path of travel
could further be impinged.
Allowing sidewalk vending operations within 25 feet of any
of these public use items could negatively affect the welfare
of the public. Sidewalk vending operations could obstruct
the view of these items and discourage public use of these
items, as they were intended. Further, sidewalk vending
adjacent to any of these public use items could hinder
required access for a disabled person.
Many of the sidewalks and pathways in the City are less
than eight (8) feet wide. Sidewalk vending in these areas
would unreasonably interfere with the flow of pedestrians
and disrupt access for persons with disabilities. Assuming
a sidewalk vending receptacle that is four (4) feet by four
(4) feet, this would leave a minimum of four (4) feet not
withstanding any queues or persons patronizing the
sidewalk vendor.
This restriction is consistent with GOV Section 51038(2)(A),
which allows prohibition of stationary sidewalk vendors in
public parks that have a single -concessionaire agreement.
Also consistent with State requirements, roaming vendors
are not affected by this restriction.
This restriction is consistent with GOV Section 51038(4)(B),
which allows the prohibition of stationary sidewalk vendors
in areas zoned exclusively residential. Consistent with State
requirements, roaming vendors are not affected by this
restriction.
12-14
An Ordinance Creating a Sidewalk Vending Program in
Compliance with California Senate Bill 946
November 13, 2018
Page 8
Sidewalk Vending in Public Parks
GOV Section 51038(b)(2)(B) allows local jurisdictions to adopt additional requirements
regulating the time, place, and manner of sidewalk vending in a park owned or operated
by the local jurisdiction if the requirements are: 1) directly related to objective health,
safety, or welfare concerns; 2) necessary to ensure the public's use and enjoyment of
natural resources and recreational opportunities; or 3) necessary to prevent an undue
concentration of commercial activity that unreasonably interferes with the scenic and
natural character of the park.
The City has approximately 278 acres of developed parks with parklands ranging in size
from mini -parks, such as the Lower Bay Park to the 39 -acre Bonita Canyon Sports Park.
The City's parks, bicycle and pedestrian trails, recreational facilities, and coastal
resources such as beaches play an important role in the physical, mental, social, and
environmental health of Newport Beach residents and visitors. Each park is divided into
one of two categories, an active park or a passive park.
Active parks contain one or more sporting fields or actively encourage physical activity.
All of the City's active parks are listed as "community parks" and "neighborhood parks" in
City Council Policy B-1 (Attachment D).
Passive parks are typically less developed than an active park, but may contain features
such as walking tracks, gardens, seating, barbecues, and picnic areas. They do not
usually contain sports infrastructure or encourage strenuous physical activity, although
they may contain play equipment. The City's passive parks are listed as "view parks" in
City Council Policy B-1 (Attachment D).
Within passive parks, the proposed program would prohibit sidewalk vendors from
approaching persons. This commercial activity would detract from enjoyment of the
natural resources, including scenic views, and passive recreational opportunities while
interfering with the park's intended use.
Within active parks, the proposed program would also prohibit sidewalk vendors from
approaching persons engaged in or spectating a sporting activity. Active parks are
intended to encourage physical activity. If not properly regulated, sidewalk vendors could
pose an interruption to the park's intended use.
Enforcement, Penalties, and Appeals
GOV Section 51039 outlines limitations on punishing sidewalk vendors for violating
parameters of the City's program.
The program encourages efficient enforcement through its operating conditions, such as
requiring conspicuous display of a sidewalk vendor permit and requiring the allowance of
certain City officials to inspect the operation at all times.
12-15
An Ordinance Creating a Sidewalk Vending Program in
Compliance with California Senate Bill 946
November 13, 2018
Page 9
Violations of NBMC Chapter 5.97, Sidewalk Vending Program would be enforced through
administrative fines established in SB 946 and potential revocation of an issued permit.
Also included is an appeals framework, which provides due process for individuals who
are in disagreement with an issued administrative citation or who desire to contest
revocation of an issued permit.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action 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.
NOTICING:
This agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Draft Sidewalk Vending Program Ordinance
Attachment B — Senate Bill No. SB -946
Attachment C — Sidewalk Vendor Checklist
Attachment D — List of Passive and Active Parks
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ATTACHMENT A
ORDINANCE NO. 2018-19
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, CREATING A
PROGRAM TO REGULATE AND PERMIT SIDEWALK
VENDING PURSUANT TO CALIFORNIA SENATE BILL 946
WHEREAS, on September 17, 2018, California Governor Edmund Gerald Brown
signed Senate Bill ("SB") 946 into law, which regulates sidewalk vendors throughout the
state including within the City of Newport Beach ("City");
WHEREAS, SB 946 takes effect January 1, 2019, and limits the authority of the
City to regulate sidewalk vendors, except as provided under California Government Code
Sections 51038 and 51039;
WHEREAS, the Newport Beach Municipal Code ("NBMC") currently prohibits or
limits the activities of sidewalk vendors, which places the NBMC in conflict with SB 946;
WHEREAS, the City Council adopts this ordinance under the authority of SB 946
and the City Council finds the regulations and requirements provided in this ordinance
are directly related to the City's objective in protecting the health, safety and welfare of its
residents, businesses, and visitors;
WHEREAS, the City Council finds this ordinance regulates the time, place, and
manner of sidewalk vending, as specified, to address health, safety, and welfare
concerns;
WHEREAS, the City Council finds the regulations in this ordinance, including, but
not limited to those regulations governing minimum sidewalk widths, sidewalk vending
receptacle sizes, distance requirements, and food and merchandise storage are
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 finds this ordinance is necessary to ensure the
public's use and enjoyment of natural resources and recreational opportunities; and
WHEREAS, the City Council finds this ordinance is necessary to prevent an undue
concentration of commercial activity that unreasonably interferes with the scenic and
natural character of City parks.
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NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: Section 5.11.070 is hereby added to NBMC Chapter 5.11 to read as
follows..
5.11.070 Exception.
This Chapter shall not apply to sidewalk vendors to the extent their activity is
regulated under Chapter 5.97 of this Code, or any successor chapter.
Section 2: Subsection "H" is hereby added to NBMC Section 5.42.030 to read
as follows:
H. Sidewalk vendors to the extent their activity is regulated under Chapter 5.97
of this Code, or any successor chapter.
Section 3: NBMC Chapter 5.97 is added to Title 5 of the NBMC to read as
follows:
Chapter 5.97
SIDEWALK VENDING PROGRAM
Sections:
5.97.010
Purpose
5.97.020
Definitions
5.97.030
Permit Required
5.97.040
Issuance of Permit
5.97.050
Operating Conditions
5.97.060
Prohibited Activities and Locations
5.97.070
Penalties
5.97.080
Appeals
5.97.010 Purpose
The purpose of this chapter is to establish a sidewalk vendor permitting and
regulatory program that complies with Senate Bill 946 (Chapter 459, Statutes
2018). The provisions of this chapter allow the City to encourage small business
activities by removing total prohibitions on portable food stands and certain forms
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of solicitation while still permitting regulation and enforcement of unpermitted
sidewalk vending activities to protect the publics' health, safety and welfare.
A. The City Council hereby finds that, to promote the health, safety and
welfare, restrictions on street vending are necessary to:
1. Ensure no interference with:
a. The performance of police, firefighter, lifeguard and
emergency medical personnel services;
b. 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,
restrooms, trash receptacles, firefighting apparatus, mailboxes, as well as
access to locations used for public transportation services;
3. Maximize public access to and along the coast; and
4. Reduce exposure to the City for personal injury or property damage
claims and litigation.
B. The City Council hereby finds that the unique characteristics of the City
require certain restrictions on sidewalk vending as follows:
1. The Balboa Island walking trail is extremely narrow and has a high
volume of pedestrians traveling in each direction. Restrictions on sidewalk
vending are necessary to protect the public from injury given the Balboa
Island walking trail's popularity as a tourist destination;
2. The boardwalk is under twelve (12) feet in width in places and has a
centerline, which provides for a high volume of pedestrians, bicyclists, and
rollerskaters to travel in each direction. Restrictions on sidewalk vending
are necessary to protect the public from injury given the Boardwalk's
popularity as a tourist destination;
3. East Balboa Boulevard between Adams Street and A Street, Marine
Avenue on Balboa Island, and East Coast Highway between Avocado
Avenue and Hazel Drive, are extremely popular tourist destinations with
unusually high pedestrian and vehicular traffic volumes. Restrictions on
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sidewalk vending are necessary to protect the public from injury given the
popularity of these tourist destinations;
4. The Civic Center contains the City's emergency operation center, the
headquarters for the Fire Department, and other critical infrastructure.
Restrictions on sidewalk vending are necessary to ensure that fire
equipment is easily accessible and critical infrastructure is maintained and
accessible at all times;
5. Many of the City's parks provide passive recreational opportunities
and restrictions on sidewalk vending are necessary to protect the natural
resources, recreational opportunities, as well as scenic and natural
character of these parks;
6. Restrictions on sidewalk vending at active parks is necessary to
protect the health, safety and welfare of those persons engaged in active
sports activities as well as spectators of sporting activities; and
7. Many of the sidewalks and pathways in the City are under eight (8)
feet wide and sidewalk vending in these areas would unreasonably interfere
with the flow of pedestrians and disrupt access for persons with disabilities.
5.97.020 Definitions
A. 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.
B. 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.
1. "Alcohol" means an "alcoholic beverage" as defined in Section
20.70.020(A) of this Code, or any successor section;
2. "Balboa Island walking trail" means the pathway area that borders
the water and Grand Canal on Balboa Island and Little Balboa Island;
3. "Beach" means any public ocean front, or bay front beach within the
City, including ocean or bay public piers, public floats, public wharves or
public strands adjoining public ocean front or bay front beach areas;
4. "Boardwalk" or "Oceanfront Boardwalk" means the concrete walkway
approximately twelve (12) to twenty-two (22) feet in width immediately
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adjacent to the sandy ocean beach (except where the beach has been
improved with parking lots, parks or school playgrounds) and that runs from
36th Street to a point east of E Street. The Boardwalk is designated as West
Ocean Front and East Ocean front on the official City atlas;
5. "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;
6. "Civic Center" or "City Hall" means the building, facilities, and parking
structure located at 100 Civic Center Drive, Newport Beach, California,
92660;
7. "Fire station" means any facility where fire engines and other
equipment of the City's Fire Department are housed;
8. "Food" means any item provided in Health and Safety Code
Section 113781, or any successor section;
9. "Heating element" means any device used to create heat for food
preparation;
10. "Lifeguard headquarters" means the lifeguard facilities located at the
base of Newport Pier, alongside the Balboa Pier, and on Corona Del Mar
State Beach;
11. "Marijuana" means the substances defined in Code Section
10.70.020(A), or any successor section;
12. "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;
13. "Park" means the parks listed in City Council Policy B-1, Exhibit A, or
any successor policy. The City has both active parks and passive parks:
a. "Active parks" contain one (1) or more sporting fields or
actively encourage physical activity. The City's active parks are
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listed as "community parks" and "neighborhood parks" in City Council
Policy B-1, Exhibit A;
b. "Passive parks" are typically less developed than an active
park, but may contain features such as walking tracks, gardens,
seating, barbecues, and picnic areas. They do not usually contain
sports infrastructure or encourage strenuous physically activity,
although they may contain playground equipment. The City's
passive parks are listed as "view parks" in City Council Policy B-1,
Exhibit A;
14. "Pathway" means a paved path or walkway owned by the City or
other public entity that is specifically designed for pedestrian travel, other
than a sidewalk;
15. "Person" means and includes all domestic and foreign corporations,
associations, syndicates, joint stock corporations, partnerships of every
kind, clubs, Massachusetts Trust, business or common law trusts, societies,
and individuals transacting and carrying on any business in the City;
16. "Police station" means any facility where police vehicles and other
equipment of the City's Police Department are housed;
17. "Public property" means all property owned or controlled by the City,
including, but not limited to, buildings, alleys, beaches, boardwalks, parks,
pathways, streets, parking lots, sidewalks, and walking trails;
18. "Residential" means any area zoned exclusively as residential in Title
20 or Title 21 of the Code or is designated exclusively for residential use as
part of a PC (Planned Community) Zoning District, Planned Community
Development Plan, Planned Residential District, Specific Plan District,
Specific Plan Area, or residential overlay district or their equivalent;
19. "Roaming sidewalk vendor" means a sidewalk vendor who moves
from place -to -place and stops only to complete a transaction;
20. "Sidewalk" means that portion of a highway, other than the roadway,
set apart by curbs, barriers, markings or other delineation specifically
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designed for pedestrian travel and that is owned by the City or other public
entity;
21. "Sidewalk vending receptacle" or "sidewalk vendor receptacle"
means a pushcart, stand, display, pedal -driven cart, wagon, showcase,
rack, or other non -motorized conveyance used for sidewalk vending
activities;
22. "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,
23. "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,
placement, or maintenance of any sidewalk vendor receptacles;
24. "Special event" means any special event described in Section
11.03.020(B), or any successor section;
25. "Stationary sidewalk vendor" means a sidewalk vendor who vends
from a fixed location; and
26. "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.
5.97.030 Permit Required
A. No person, either for themselves or any other person, shall engage in any
sidewalk vendor activities within the City without first applying for and receiving a
permit from the Finance Director, or the Finance Director's designee, under this
chapter.
B. A written application for a sidewalk vendor permit shall be filed with the
Finance Director, or Finance Director's designee, on a form provided by the City,
and shall contain the following information:
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1. The name, address, and telephone number of the person applying
to become a sidewalk vendor;
2. 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;
3. The name, address, and telephone number of all persons that will be
employed as roaming sidewalk vendors or at a sidewalk vending receptacle;
4. The number of sidewalk vending receptacles the sidewalk vendor will
operate within the City under the permit;
5. The location(s) in the City where the sidewalk vendor intends to
operate;
6. The day(s) and hours of operation the sidewalk vendor intends to
operate at such location(s);
7. Whether the vendor intends to operate as a stationary sidewalk
vendor or a roaming sidewalk vendor and, if roaming, the intended path of
travel;
8. The dimensions of the sidewalk vendor's sidewalk vending
receptacle(s), including a picture of each sidewalk vending receptacle
operating under the permit and any signs that will be affixed thereto;
9. Whether the sidewalk vendor will be selling food, merchandise, or
both;
10. If the sidewalk vendor is selling food, a description of the type of food
to be sold, whether such foods are prepared on site, whether such foods
will require a heating element inside or on the sidewalk vending receptacle
for food preparation, and the type of heating element, if any;
11. If the vendor is selling merchandise, a description of the merchandise
to be sold;
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12. A copy of the health permit required for any sidewalk vendors selling
food, as required by Chapter 6.08 of the Code, or any successor chapter;
13. Proof the person possesses a valid California Department of Tax and
Fee Administration seller's permit which notes the City as a location or sub -
location, which shall be maintained for the duration of the sidewalk vendor's
permit;
14. An acknowledgment that the sidewalk vendor will comply with all
other generally applicable local, state, and federal laws;
15. A certification that, to their knowledge and belief, the information
contained within the application is true;
16. 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 relate (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;
17. An acknowledgement that use of public property is at the sidewalk
vendor's 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 the their own risk;
18. An acknowledgement that the sidewalk vendor will obtain and
maintain throughout the duration of any permit issued under this chapter,
any insurance required by the City's Risk Manager;
19. If the sidewalk vendor has operated in the City in the past, proof of
prior sales tax allocation to the City; and
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20. Any other relevant information required by the Finance Director, or
the Finance Director's designee.
C. Each application for a sidewalk vendor permit shall be accompanied by a
non-refundable 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 license to carry on the activities authorized by said permit,
unless such permittee maintains a permanent place of business within the City.
5.97.040 Issuance of Permit
A. Within thirty (30) calendar days of receiving a complete application, the
Finance Director, or the Finance Director's designee, 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, 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 police officers to properly police the area of such activity as to
interfere with normal police protection for other areas of the City;
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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 past
twelve (12) months;
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, as determined by
the City's Risk Manager, or the Risk Manager's designee, and, if required
by the City, the City has been named as an additional insured; and
13. The sidewalk vendor has satisfactorily provided all information
requested by the Finance Director, or the Finance Director's designee, to
consider the vendor's application.
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 shall expire 12 months from date of
issuance.
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5.97.050 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;
D. All signage and advertising related in any way to the sidewalk vendor shall
be attached to the sidewalk vending receptacle, if any, or the sidewalk vendor's
person;
E. Sidewalk vendors shall not use any electrical, flashing, wind powered, or
animated sign;
F. Sidewalk vending receptacles shall not be stored on public property and
shall be removed when not in active use by a sidewalk vendor;
G. All sidewalk vendors shall allow a police officer, firefighter, life safety
services officer, code enforcement officer, health inspector, or other government
official charged with enforcing laws related to the street vendor's activities, 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,
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H. Sidewalk vending receptacles and any attachments thereto shall not
exceed a total height of four (4) feet, a total width of four (4) feet, and a total length
of four (4) feet;
I. No sidewalk vending receptacle shall contain or use propane, natural gas,
batteries, or other explosive or hazardous materials;
J. 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;
K. Sidewalk vendors that sell food shall have in their possession at all times
they are conducting sidewalk vending activities, the health permit required by
Chapter 6.08 of this Code, or any successor chapter;
L. 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. Sidewalk vendors
shall not leave any location without first picking up, removing, and disposing of all
trash or refuse from their operation;
M. Sidewalk vendors shall immediately clean up any food, grease or other fluid
or item related to sidewalk vending activities that falls on public property,-
N.
roperty;
N. Sidewalk vendors shall maintain a minimum four (4) foot clear accessible
path free from obstructions, including sidewalk vending receptacles and customer
queuing area;
O. Sidewalk vendors shall comply with the noise standards provided in
Chapters 10.26 and 10.28 of this Code, or any successor chapters;
P. In passive parks, sidewalk vendors shall not approach persons to sell food
or merchandise,-
Q.
erchandise;
Q. In active parks, sidewalk vendors shall not interfere in any way with anyone
engaged in a sporting activity and shall not approach spectators who are watching
a sporting activity to sell food or merchandise; and
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R. Sidewalk vendors shall ensure that all required insurance is in effect prior
to conducting any sidewalk vendor activities and maintained for the duration of the
permit.
5.97.060 Prohibited Activities and Locations
A. Sidewalk vendors shall comply with all operating conditions including those
conditions set forth in Section 5.97.050, or any successor sections.
B. 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.
C. Sidewalk vendors shall not engage in any of the following activities -
1 .
ctivities:
1. Renting merchandise to customers;
2. Displaying merchandise or food that is not available for immediate
sale;
3. Selling of alcohol, marijuana, adult oriented material, tobacco
products, products that contain nicotine or any product used to smoke/vape
nicotine or marijuana;
4. Using an open flame on or within any sidewalk vending receptacle;
5. Using an electrical outlet or power source that is owned by the City
or another person other than the sidewalk vendor;
6. Conducting sidewalk vending activities:
a. Anywhere in the City between the hours of 10:00 p.m. and
7:00 a.m. daily;
b. On sidewalks or pathways directly adjacent to or within
residential areas, between the hours of 9:00 p.m. and 8:00 a.m. daily;
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7. 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 sidewalk vendor to leave or after the person has
declined the offer to purchase food or merchandise;
8. Knowingly making false statements or misrepresentations during the
course of offering food or merchandise for sale;
9. Blocking or impeding the path of the person(s) being offered food or
merchandise to purchase;
10. 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;
11. Touching the person(s) being offered food or merchandise without
that person(s)' consent;
12. Advertising any product or service that is not related to the food or
merchandise being offered for immediate sale; or
13. Placing their sidewalk vending receptacles outside of any pathway
or sidewalk when engaging in sidewalk vending activities.
D. Sidewalk vendors shall not engage in sidewalk vending activities at the
following locations:
1. The Boardwalk, including any portion of paved path extending from
the Boardwalk into the beach;
2. The Balboa Island walking trail;
3. East Balboa Boulevard between Adams Street and A Street, Marine
Avenue on Balboa Island, and East Coast Highway between Avocado
Avenue and Hazel Drive;
4. The Civic Center;
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5. Any public property that does not meet the definition of a sidewalk or
pathway including, but not limited to, any alley, beach, pier, square, street,
street end, or parking lot;
6. Within two -hundred (200) feet of:
a. A police station;
b. A fire station;
C. A lifeguard tower;
d. Lifeguard headquarters;
e. A permitted certified farmers' market or swap meet during the
limited operating hours of that certified farmers' market or swap
meet;
f. An area designated for a special event permit issued by the
City, during the limited duration of the special event, if the City
provides the sidewalk vendor any notice, business interruption
mitigation, or other rights the City provided to any affected
businesses or property owners under the City's special event permit;
7. Within one -hundred (100) feet of:
a. Another sidewalk vendor;
b. A public or private school, a place of worship, or a large or
general child day-care facility;
C. The intersection of a street and a sidewalk;
d. Any public picnic area, playground area or playground
equipment;
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e. Any public community center, pier, athletic field, sailing
center, softball/baseball diamond, basketball court, handball court,
pickleball court, tennis court, soccer field, or volleyball court,
f. Any public marina;
g. The portion of any City facility that is renting merchandise or
selling food to the public or where the rental merchandise is stored;
h. Any police officer, firefighter, lifeguard or emergency medical
personnel who are actively performing their duties or providing
services to the public;
8. Within twenty-five (25) feet of a:
a. Fire hydrant;
b. Curb which has been designated as white, yellow, green,
blue, or red zone, or a bus zone;
C. Automated teller machine;
d. Driveway, alley, or entrance to a parking lot or parking garage;
e. Entrance or exit to a building, structure or facility; or
f. Trash receptacle, bike rack, bench, bus stop, restroom, or
similar public use items.
E. Stationary sidewalk vendors shall not sell food or merchandise or engage
in any sidewalk vending activities:
1. On any sidewalk or pathway that is not a minimum width of eight (8)
feet;
2. At any park where the City has signed an agreement for concessions
that exclusively permits the sale of food or merchandise by a
concessionaire; or
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3. On sidewalks or pathways directly adjacent to or within residential
areas.
5.97.070 Penalties
Violations of this chapter shall not be prosecuted as infractions or misdemeanors
and shall only be punished by the following administrative citation and revocation
structure:
A. Except as otherwise provided in this chapter, any violation of this chapter
shall be assessed administrative fines in the following amounts:
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;
3. An administrative fine not exceeding five hundred dollars ($500) for
each additional violation within one (1) year of the first violation;
B. 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 shall be
assessed administrative fines in the following amounts:
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;
3. An administrative fine not exceeding one thousand dollars ($1,000)
for each additional violation within one (1) year of the first violation;
C. Upon proof of a valid permit issued by the City, the administrative fines set
forth in Subsection 5.97.070(B) shall be reduced to the administrative fines set
forth in Subsection 5.97.070(A), or any successor sections; and
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Ordinance No. 2018 -
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D. The Finance Director, or the Finance Director's designee, may revoke a
permit issued to a sidewalk vendor for the term of that permit upon the fourth
violation or subsequent violations within one (1) year of the first violation.
5.97.080 Appeals
A. Administrative citations shall be appealed in the following manner:
1. Any recipient of an administrative citation may request an ability -to -
pay determination, contest that there was a violation of the Code, and/or
that he or she is the responsible person, by completing a request for hearing
form and returning to the City's Finance Department in accordance with
Section 1.05.060(A) of this Code, or any successor section.
Notwithstanding the time limits set forth in Section 1.05.060(A), any person
requesting a hearing and ability -to -pay determination may file the request
within the time frames set forth in Government Code Section 51039(f)(1), or
any successor section;
2. Any recipient of an administrative citation may file for a hardship
waiver in accordance with Section 1.05.060(6) of this Code, or any
successor section;
3. All appeals of administrative citations shall be heard by a Hearing
Officer designated pursuant to Section 1.05.070(A) of this Code, or any
successor section, and the Hearing Officer may be disqualified as provided
in Section 1.05.070(B), or any successor section;
4. In addition to the powers set forth in Section 1.05.070(C)(1) through
(4), and (6) through (7) of this Code, or any successor section, the Hearing
Officer shall have the power to:
a. Reduce the fine based upon the person's ability to pay the
fine;
b. If the Hearing Officer finds the person meets the criteria
described in subdivision (a) or (b) of Government Code Section
68632, or any successor section, the Hearing Officer, shall order the
City to accept, in full satisfaction, twenty (20) percent of the
administrative fine imposed pursuant to this chapter;
C. 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;
12-35
Ordinance No. 2018 -
Page 20 of 24
5. All appeals of administrative citations shall be conducted in
accordance with Section 1.05.080 of this Code, or any successor section;
6. After considering all of the testimony and evidence submitted at the
hearing, the Hearing Officer shall issue a written decision within ten (10)
days of the hearing and shall list in the decision the reasons for that
decision;
a. The Hearing Officer may uphold or deny the administrative
citation or take any other action within the Hearing Officer's power;
b. If the Hearing Officer determines that the administrative
citation should be upheld and a fine assessed, then the amount of
the fine assessed that is on deposit with the City shall be retained by
the City and any remainder on deposit with the City, if any, shall be
promptly returned,
c. If the Hearing Officer determines that the administrative citation
should be denied, or imposes an alternative disposition, and the fine
was deposited with the City, then the City shall promptly refund the
amount of the deposited fine;
d. The decision of the Hearing Officer shall be final; and
e. The recipient of the administrative citation shall be served with
a copy of the Hearing Officer's written decision in the manner
prescribed by Section 1.08.080 of this Code, or any successor
section.
B. Decisions of the Finance Director, or the Finance Director's designee, to
revoke a permit shall be appealed in the following manner:
1. Appeals shall be initiated within fifteen (15) calendar days of service
of notice of the decision in accordance with Section 1.08.080 of this Code,
or any successor section,
2. Appeals of decisions shall be made in writing on forms provided by
the City;
3. Decisions that are appealed shall not become effective until the
appeal is resolved;
4. All appeals of decisions shall be heard by a Hearing Officer
designated pursuant to Section 1.05.070(A) of this Code, or any successor
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Ordinance No. 2018 -
Page 21 of 24
section, and the Hearing Officer may be disqualified as provided in Section
1.05.070(B), or any successor section.
5. The Hearing Officer shall have the powers set forth in Section
1.05.070(C)(1) through (4), and (6) of this Code, or any successor section;
6. A hearing before the Hearing Officer may be set for a date that is not
less than fifteen (15) and not more than sixty (60) days from the date that
the request for hearing is filed in accordance with the provisions of this
chapter. The responsible person requesting the hearing shall be notified of
the time and place set for the hearing at least ten (10) days prior to the date
of the hearing. The City and responsible person may mutually agree to
waive, modify or change the date of the preceding;
7. All appeals of decisions shall be conducted in accordance with
Section 1.05.080(B), (D), (F), and (G), or any successor section, and shall
comply with the following additional procedures:
a. At least ten (10) days prior to the hearing, the responsible
person requesting the hearing shall be provided with copies of the citations,
reports and other documents or evidence submitted or relied upon by the
Finance Director, or the Finance Director's designee;
b. No other discovery is permitted. Formal rules of evidence shall
not apply. Administrative hearings are intended to be informal in nature. Any
relevant evidence shall be admitted if it is the type of evidence on which
reasonable persons are accustomed to rely in the conduct of serious affairs,
regardless of the existence of any common law or statutory rules, which
might make improper the admission of such evidence over objection in civil
actions in courts of competent jurisdiction in this State. Irrelevant and unduly
repetitious evidence shall be excluded;
C. The failure of any responsible person who has filed an appeal
to appear at the hearing shall constitute a failure to exhaust their
administrative remedies;
8. After considering all of the testimony and evidence submitted at the
hearing, the Hearing Officer shall issue a written decision within ten (10)
days of the hearing and shall list in the decision the reasons for that
decision:
a. The Hearing Officer may uphold or deny the decision and the
decision of the Hearing Officer shall be final; and
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Ordinance No. 2018 -
Page 22 of 24
b. The responsible person who has filed an appeal shall be
served with a copy of the Hearing Officer's written decision, by the City
Clerk, in the manner prescribed by Section 1.08.080 of this Code, or any
successor section.
Section 4: NBMC Subsection 6.05.010(J) is amended to read as follows:
J. "Retail food vendor" means any store, shop, sales outlet, sidewalk vendor
as defined in Chapter 5.97 of this Code, or any successor chapter, or other
establishment, including a grocery store or a delicatessen, other than a restaurant,
located within the City of Newport Beach that sells prepared food.
Section 5: Subsection "8" is hereby added to NBMC Subsection 10.08.030(8)
to read as follows:
8. For sidewalk vendors in compliance with Chapter 5.97 of this Code, or any
successor chapter.
Section 6: Subsection "I" is hereby added to NBMC Section 11.04.070 to read
as follows:
I. Engaging in any sidewalk vending activity unless conducted in compliance
with Chapter 5.97 of this Code, or any successor chapter.
Section 7: Subsection "C" is hereby added to NBMC Section 11.04.140 to read
as follows:
C. Notwithstanding this chapter, unlawful sidewalk vending activities shall be
punished in accordance with Chapter 5.97 of this Code, or any successor chapter.
Section 8: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 9: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The City
Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
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Ordinance No. 2018 -
Page 23 of 24
Section 10: 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 11: Except as expressly modified in this ordinance, all other sections,
subsections, sentences, clauses or phrases set forth in the Newport Beach Municipal
Code shall remain unchanged and shall be in full force and effect.
Section 12: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the day of 2018, and adopted on the day
of , 2018, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
Marshall "Duffy" Duffield
Mayor
ATTEST:
Leilani I. Brown
City Clerk
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Ordinance No. 2018 -
Page 24 of 24
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron C. Harp
City Attorney
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Attachment B
Senate Bill No. SB 946
12-41
Senate Bill No. 946
CHAPTER 459
An act to add Chapter 6.2 (commencing with Section 51036) to Part 1 of
Division 1 of Title 5 of the Government Code, relating to sidewalk vendors.
[Approved by Governor September 17, 2018. Filed with
Secretary of State September 17, 2018.]
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 requirements
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
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 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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2
vending, as specified, to petition for dismissal of the sentence, fine, or
conviction.
Existing constitutional provisions require that a statute that limits the
right 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 follows:
SECTION 1. (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
1 of Division 1 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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(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 113 700) 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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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 true.
(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
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 violation.
(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 (1):
(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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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 the jurisdiction 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) (1) 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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(3) Unless requested by the petitioner, no hearing is necessary to grant
or deny a petition filed under paragraph (1).
(4) If the court that originally sentenced or imposed a fine on the
petitioner is not available, the presiding judge shall designate another judge
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 of judgments 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
I 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.
U
12-48
Attachment C
Sidewalk Vendor Checklist
12-49
oW�Qe CITY OF NEWPORT BEACH
c"41FORNP SIDEWALK VENDING PROGRAM CHECKLIST
UNDERSTANDING ,
SIDEWALK VENDING
• 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.
• The primary use of a sidewalk is for pedestrians. Vendors shall not
unduly interfere with traffic or pedestrian movement.
• A sidewalk vendor permit is non -transferable.
• All permits issued shall expire 12 months from date of issuance.
• Hours Allowed:
Non -Residential areas: 7:00 a.m. — 10:00 p.m.
Residential areas: 8:00 a.m. — 9:00 p.m.
No stationary vendors allowed in residential areas
• All vendors must ensure compliance with the requirements outlined in
City Municipal Code Chapter 5.97 — Sidewalk Vending Program.
01-�0' CONTACTS �'
California Department of Tax & Fee Administration (CDFTA)
16715 Von Karman Ave., #200
Irvine, CA 92606
949-440-3473
Orange County Health Care Agency Department
1241 E. Dyer Rd., #120
Santa Ana, CA 92705
714-433-6000
Orange County Clerk -Recorder Office
12 Civic Center Plaza, Room 106
Santa Ana, CA 92701
714-834-2500
GETTING STARTED!
IMPORTANT RESPONSIBILITES CHECKLIST
PRIOR TO FILING AN APPLICATION FOR A SIDEWALK VENDING
PERMIT, YOU MUST DO THE FOLLOWING:
❑ Review the City Municipal Code Chapter 5.97 — Sidewalk Vending
Program.
❑ Apply for and obtain a valid California Department of Tax and Fee
Administration (CDTFA) seller's permit indicating a Newport Beach
location or sub -location.
❑ Apply for and obtain a health permit from the Orange County Health
Care Agency if selling food.
❑ Choose and file a Fictitious Business Name Statement with the Orange
County Clerk -Recorder's Office if you will be using any name other than
your given name, the name(s) of your partner(s), or the officially
registered name of your LLC or Corporation.
❑ Provide proof of prior sales tax allocation to the City (for renewals).
ONCE YOU HAVE CHECKED ALL OF THE ABOVE, YOU MAY:
Apply for a City permit thirty (30) days prior to engaging in any vending on
public right-of-way and pay the appropriate fees.
Application may be filed by mail or in person at:
City of Newport Beach -Revenue Division
100 Civic Center Drive
Newport Beach, CA 92660
949-644-3141
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Attachment D
List of Passive and Active Parks
12-51
EXHIBIT A
PARK DEDICATION POLICY
IrJ.111t4--4011
The following view parks serve as citywide resources by reason of their unusual beauty
and the view provided:
Back Bay View Park
Bayview Park
Begonia Park
Channel Place Park
Civic Center Park
Cliff Drive Park
Corona del Mar State Beach Park
John Wayne Park
Galaxy View Park
Inspiration Point
Irvine Terrace Park
Los Trancos (lower, middle, upper)
Canyon Watch
Harbor Watch
Castaways Park
Jasmine View Park
Kings Road Park
Lido Park
Lookout Point
Newport Island Park
Peninsula Park
Rhine Wharf Park
Sunset View Park
West Jetty View Park
Westcliff Park
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The following Community and Neighborhood Parks serve as citywide resources by
reason of the unique recreational opportunities they offer:
Arroyo Park - Lighted multi-purpose field, basketball court, picnic areas and
playground.
Bonita Canyon Sports Park - Four youth baseball fields, one multi-purpose field,
one soccer field, tennis courts, pickleball courts, basketball court, 2 playgrounds
and connecting trail to Arroyo Park.
Bonita Creek Park - Community center, playground, lighted multi-purpose fields,
and basketball court.
Buck Gully- hiking trails
Buffalo Hills Park - Basketball court, baseball/ softball diamond, volleyball court,
multi-purpose fields.
Carroll Beek Community Center and Balboa Island Park - Basketball court, tot
playground and community center.
Civic Center Park - Scenic view, dog park, art sculptures, cactus garden, Civic
green, and walking trails and community room.
Coastal Peak Park - Two multi-purpose fields, playground, two picnic pavilions
and basketball court.
Community Youth Center/Grant Howald Park - Basketball court, tennis courts,
playground, community center, softball and multi-purpose field.
Eastbluff Park - Baseball diamond, multi-purpose field, playground, and view of
the Back Bay.
Harbor View Nature Park - Natural vegetation area.
Lincoln Athletic Center - Gymnasium, lighted baseball/ softball diamond and
multi-purpose fields.
Marina Park - Community center, sailing center, picnic area, playground,
basketball courts and fitness course.
12-53
Mariners Park - Multi-purpose room, baseball/ softball facilities, racquetball
courts, lighted tennis courts, multi-purpose fields, and an ADA equipped play
area.
Newport Coast Community Center - Gymnasium, multi-purpose facility with
classrooms
OASIS Senior Center - Multi-purpose senior facility with classrooms, large multi-
purpose room, and fitness center.
Peninsula Park - Beach sited multi-purpose field, playground (ADA compliant),
picnic and barbecue facilities, baseball/ softball diamond and gazebo.
San Joaquin Hills Park - Tennis courts, pentanque courts, lawn bowling facility.
San Miguel Park - Ball diamond, athletic field, four racquetball courts, basketball
court and an ADA equipped play area.
Sunset Ridge Park - Baseball field, soccer fields, butterfly garden, scenic view and
playground.
Theater Arts Center - Ninety seat community theater.
West Newport Community Center- Gymnasium
West Newport Park - Tennis courts, racquetball courts, basketball court, and 3
playgrounds.
38th Street Park - Basketball courts and playground (ADA compliant).
Big Canyon Nature Park - hiking trails
Bob Henry Park - Multipurpose field, ball diamond, playground, picnic areas
Newport Aquatic Center - rowing, canoeing, kayaking, paddle boarding
facility
North Start Beach - aquatic center
Spyglass Hill Park - playground, picnic area
16th Street Community Center - multipurpose facility with classroom
12-54
PORT CITY OF
O TC%
_ i NEWPORT BEACH
City Council Staff Report
<i FO RN
ATTACHMENT C
November 27, 2018
Agenda Item No. 6
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Benjamin M. Zdeba, AICP, Associate Planner
PHONE: 949-644-3253
TITLE: Second Reading and Adoption of Ordinance No. 2018-19 — Creating
a Program to Regulate and Permit Sidewalk Vending Pursuant to
California Senate Bill 946
ABSTRACT:
Ordinance No. 2018-19 was introduced and considered at the November 13, 2018 City
Council meeting. It creates a new Newport Beach Municipal Code (NBMC) Chapter 5.97
(Sidewalk Vending Program), which establishes a permitting program and regulations
consistent with Senate Bill (SB) 946.
RECOMMENDATION:
a) Find this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Conduct second reading and adopt Ordinance No. 2018-19, An Ordinance of the City
Council of the City of Newport Beach, California, Creating a Program to Regulate and
Permit Sidewalk Vending Pursuant to California Senate Bill 946.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item. There may be indirect costs associated with
additional enforcement.
DISCUSSION:
Senate Bill 946 establishes statewide governance of vending in the public right-of-way
and on public parks. Portions of the NBMC are presently in conflict with the requirements
of SB 946. If the City Council wishes to regulate sidewalk vending, the City's rules and
regulations must be consistent with SB 946.
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Second Reading and Adoption of Ordinance No. 2018-19 — Creating a Program to
Regulate and Permit Sidewalk Vending Pursuant to California Senate Bill 946
November 27, 2018
Page 2
In order to ensure the City can properly regulate sidewalk vendors by the effective date
of SB 946, the NBMC must be amended prior to January 1, 2019. The attached ordinance
creates a new NBMC Chapter 5.97, Sidewalk Vending Program, establishing a permitting
program and regulations consistent with Senate Bill (SB) 946.
At the November 13, 2018 City Council meeting, Ordinance No. 2018-19 was introduced.
Council unanimously voted to pass the Ordinance to second reading with changes to
distinguish the Balboa Island Boardwalk from the Oceanfront Boardwalk. Those changes
have been incorporated in Attachment A.
ENVIRONMENTAL REVIEW:
This action 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.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A — Ordinance No. 2018-19
12-56
Attachment A
Ordinance No. 2018-19
12-57
ORDINANCE NO. 2018-19
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, CREATING A
PROGRAM TO REGULATE AND PERMIT SIDEWALK
VENDING PURSUANT TO CALIFORNIA SENATE BILL 946
WHEREAS, on September 17, 2018, California Governor Edmund Gerald Brown
signed Senate Bill ("SB") 946 into law, which regulates sidewalk vendors throughout the
state including within the City of Newport Beach ("City");
WHEREAS, SB 946 takes effect January 1, 2019, and limits the authority of the
City to regulate sidewalk vendors, except as provided under California Government Code
Sections 51038 and 51039;
WHEREAS, the Newport Beach Municipal Code ("NBMC") currently prohibits or
limits the activities of sidewalk vendors, which places the NBMC in conflict with SB 946;
WHEREAS, the City Council adopts this ordinance under the authority of SB 946
and the City Council finds the regulations and requirements provided in this ordinance
are directly related to the City's objective in protecting the health, safety and welfare of its
residents, businesses, and visitors;
WHEREAS, the City Council finds this ordinance regulates the time, place, and
manner of sidewalk vending, as specified, to address health, safety, and welfare
concerns;
WHEREAS, the City Council finds the regulations in this ordinance, including, but
not limited to those regulations governing minimum sidewalk widths, sidewalk vending
receptacle sizes, distance requirements, and food and merchandise storage are
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 finds this ordinance is necessary to ensure the
public's use and enjoyment of natural resources and recreational opportunities; and
WHEREAS, the City Council finds this ordinance is necessary to prevent an undue
concentration of commercial activity that unreasonably interferes with the scenic and
natural character of City parks.
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Ordinance No. 2018-19
Page 2 of 24
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: Section 5.11.070 is hereby added to NBMC Chapter 5.11 to read as
follows:
5.11.070 Exception.
This Chapter shall not apply to sidewalk vendors to the extent their activity is
regulated under Chapter 5.97 of this Code, or any successor chapter.
Section 2: Subsection "H" is hereby added to NBMC Section 5.42.030 to read
as follows:
H. Sidewalk vendors to the extent their activity is regulated under Chapter 5.97
of this Code, or any successor chapter.
Section 3: NBMC Chapter 5.97 is added to Title 5 of the NBMC to read as
follows:
Chapter 5.97
SIDEWALK VENDING PROGRAM
Sections:
5.97.010
Purpose
5.97.020
Definitions
5.97.030
Permit Required
5.97.040
Issuance of Permit
5.97.050
Operating Conditions
5.97.060
Prohibited Activities and Locations
5.97.070
Penalties
5.97.080
Appeals
5.97.010 Purpose
The purpose of this chapter is to establish a sidewalk vendor permitting and
regulatory program that complies with Senate Bill 946 (Chapter 459, Statutes
2018). The provisions of this chapter allow the City to encourage small business
activities by removing total prohibitions on portable food stands and certain forms
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Ordinance No. 2018-19
Page 3 of 24
of solicitation while still permitting regulation and enforcement of unpermitted
sidewalk vending activities to protect the publics' health, safety and welfare.
A. The City Council hereby finds that, to promote the health, safety and
welfare, restrictions on street vending are necessary to:
1. Ensure no interference with:
a. The performance of police, firefighter, lifeguard and
emergency medical personnel services;
b. 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,
restrooms, trash receptacles, firefighting apparatus, mailboxes, as well as
access to locations used for public transportation services;
3. Maximize public access to and along the coast; and
4. Reduce exposure to the City for personal injury or property damage
claims and litigation.
B. The City Council hereby finds that the unique characteristics of the City
require certain restrictions on sidewalk vending as follows:
1. The Balboa Island Boardwalk is extremely narrow and has a high
volume of pedestrians traveling in each direction. Restrictions on sidewalk
vending are necessary to protect the public from injury given the Balboa
Island Boardwalk's popularity as a tourist destination;
2. The Oceanfront Boardwalk is under twelve (12) feet in width in places
and has a centerline, which provides for a high volume of pedestrians,
bicyclists, and rollerskaters to travel in each direction. Restrictions on
sidewalk vending are necessary to protect the public from injury given the
Oceanfront Boardwalk's popularity as a tourist destination;
3. East Balboa Boulevard between Adams Street and A Street, Marine
Avenue on Balboa Island, and East Coast Highway between Avocado
Avenue and Hazel Drive, are extremely popular tourist destinations with
unusually high pedestrian and vehicular traffic volumes. Restrictions on
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Ordinance No. 2018-19
Page 4 of 24
sidewalk vending are necessary to protect the public from injury given the
popularity of these tourist destinations;
4. The Civic Center contains the City's emergency operation center, the
headquarters for the Fire Department, and other critical infrastructure.
Restrictions on sidewalk vending are necessary to ensure that fire
equipment is easily accessible and critical infrastructure is maintained and
accessible at all times;
5. Many of the City's parks provide passive recreational opportunities
and restrictions on sidewalk vending are necessary to protect the natural
resources, recreational opportunities, as well as scenic and natural
character of these parks;
6. Restrictions on sidewalk vending at active parks is necessary to
protect the health, safety and welfare of those persons engaged in active
sports activities as well as spectators of sporting activities; and
7. Many of the sidewalks and pathways in the City are under eight (8)
feet wide and sidewalk vending in these areas would unreasonably interfere
with the flow of pedestrians and disrupt access for persons with disabilities.
5.97.020 Definitions
A. 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.
B. 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.
1. "Alcohol" means an "alcoholic beverage" as defined in Section
20.70.020(A) of this Code, or any successor section;
2. "Balboa Island Boardwalk" means the pathway area that borders the
water and Grand Canal on Balboa Island and Little Balboa Island;
3. "Beach" means any public ocean front, or bay front beach within the
City, including ocean or bay public piers, public floats, public wharves or
public strands adjoining public ocean front or bay front beach areas;
4. "Oceanfront Boardwalk" means the concrete walkway approximately
twelve (12) to twenty-two (22) feet in width immediately adjacent to the
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Ordinance No. 2018-19
Page 5 of 24
sandy ocean beach (except where the beach has been improved with
parking lots, parks or school playgrounds) and that runs from 36th Street to
a point east of E Street. The Oceanfront Boardwalk is designated as West
Ocean Front and East Ocean Front on the official City atlas;
5. "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;
6. "Civic Center" or "City Hall" means the building, facilities, and parking
structure located at 100 Civic Center Drive, Newport Beach, California,
92660;
7. "Fire station" means any facility where fire engines and other
equipment of the City's Fire Department are housed;
8. "Food" means any item provided in Health and Safety Code
Section 113781, or any successor section;
9. "Heating element" means any device used to create heat for food
preparation;
10. "Lifeguard headquarters" means the lifeguard facilities located at the
base of Newport Pier, alongside the Balboa Pier, and on Corona Del Mar
State Beach;
11. "Marijuana" means the substances defined in Code Section
10.70.020(A), or any successor section;
12. "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;
13. "Park" means the parks listed in City Council Policy B-1, Exhibit A, or
any successor policy. The City has both active parks and passive parks:
a. "Active parks" contain one (1) or more sporting fields or
actively encourage physical activity. The City's active parks are
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Ordinance No. 2018-19
Page 6of24
listed as "community parks" and "neighborhood parks" in City Council
Policy B-1, Exhibit A;
b. "Passive parks" are typically less developed than an active
park, but may contain features such as walking tracks, gardens,
seating, barbecues, and picnic areas. They do not usually contain
sports infrastructure or encourage strenuous physically activity,
although they may contain playground equipment. The City's
passive parks are listed as "view parks" in City Council Policy B-1,
Exhibit A;
14. "Pathway" means a paved path or walkway owned by the City or
other public entity that is specifically designed for pedestrian travel, other
than a sidewalk;
15. "Person" means and includes all domestic and foreign corporations,
associations, syndicates, joint stock corporations, partnerships of every
kind, clubs, Massachusetts Trust, business or common law trusts, societies,
and individuals transacting and carrying on any business in the City;
16. "Police station" means any facility where police vehicles and other
equipment of the City's Police Department are housed;
17. "Public property" means all property owned or controlled by the City,
including, but not limited to, buildings, alleys, beaches, boardwalks, parks,
pathways, streets, parking lots, sidewalks, and walking trails;
18. "Residential" means any area zoned exclusively as residential in Title
20 or Title 21 of the Code or is designated exclusively for residential use as
part of a PC (Planned Community) Zoning District, Planned Community
Development Plan, Planned Residential District, Specific Plan District,
Specific Plan Area, or residential overlay district or their equivalent;
19. "Roaming sidewalk vendor" means a sidewalk vendor who moves
from place -to -place and stops only to complete a transaction;
20. "Sidewalk" means that portion of a highway, other than the roadway,
set apart by curbs, barriers, markings or other delineation specifically
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Ordinance No. 2018-19
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designed for pedestrian travel and that is owned by the City or other public
entity;
21. "Sidewalk vending receptacle" or "sidewalk vendor receptacle"
means a pushcart, stand, display, pedal -driven cart, wagon, showcase,
rack, or other non -motorized conveyance used for sidewalk vending
activities;
22. "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;
23. "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,
placement, or maintenance of any sidewalk vendor receptacles;
24. "Special event" means any special event described in Section
11.03.020(B), or any successor section;
25. "Stationary sidewalk vendor" means a sidewalk vendor who vends
from a fixed location; and
26. "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.
5.97.030 Permit Required
A. No person, either for themselves or any other person, shall engage in any
sidewalk vendor activities within the City without first applying for and receiving a
permit from the Finance Director, or the Finance Director's designee, under this
chapter.
B. A written application for a sidewalk vendor permit shall be filed with the
Finance Director, or Finance Director's designee, on a form provided by the City,
and shall contain the following information -
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Ordinance No. 2018-19
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1. The name, address, and telephone number of the person applying
to become a sidewalk vendor;
2. 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;
3. The name, address, and telephone number of all persons that will be
employed as roaming sidewalk vendors or at a sidewalk vending receptacle;
4. The number of sidewalk vending receptacles the sidewalk vendor will
operate within the City under the permit;
5. The location(s) in the City where the sidewalk vendor intends to
operate;
6. The day(s) and hours of operation the sidewalk vendor intends to
operate at such location(s);
7. Whether the vendor intends to operate as a stationary sidewalk
vendor or a roaming sidewalk vendor and, if roaming, the intended path of
travel;
8. The dimensions of the sidewalk vendor's sidewalk vending
receptacle(s), including a picture of each sidewalk vending receptacle
operating under the permit and any signs that will be affixed thereto;
9. Whether the sidewalk vendor will be selling food, merchandise, or
both;
10. If the sidewalk vendor is selling food, a description of the type of food
to be sold, whether such foods are prepared on site, whether such foods
will require a heating element inside or on the sidewalk vending receptacle
for food preparation, and the type of heating element, if any;
11. If the vendor is selling merchandise, a description of the merchandise
to be sold;
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Ordinance No. 2018-19
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12. A copy of the health permit required for any sidewalk vendors selling
food, as required by Chapter 6.08 of the Code, or any successor chapter;
13. Proof the person possesses a valid California Department of Tax and
Fee Administration seller's permit which notes the City as a location or sub -
location, which shall be maintained for the duration of the sidewalk vendor's
permit;
14. An acknowledgment that the sidewalk vendor will comply with all
other generally applicable local, state, and federal laws;
15. A certification that, to their knowledge and belief, the information
contained within the application is true;
16. 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 relate (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;
17. An acknowledgement that use of public property is at the sidewalk
vendor's 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 the their own risk;
18. An acknowledgement that the sidewalk vendor will obtain and
maintain throughout the duration of any permit issued under this chapter,
any insurance required by the City's Risk Manager;
19. If the sidewalk vendor has operated in the City in the past, proof of
prior sales tax allocation to the City; and
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20. Any other relevant information required by the Finance Director, or
the Finance Director's designee.
C. Each application for a sidewalk vendor permit shall be accompanied by a
non-refundable 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 license to carry on the activities authorized by said permit,
unless such permittee maintains a permanent place of business within the City.
5.97.040 Issuance of Permit
A. Within thirty (30) calendar days of receiving a complete application, the
Finance Director, or the Finance Director's designee, 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, 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 police officers to properly police the area of such activity as to
interfere with normal police protection for other areas of the City;
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Ordinance No. 2018-19
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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 past
twelve (12) months;
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, as determined by
the City's Risk Manager, or the Risk Manager's designee, and, if required
by the City, the City has been named as an additional insured; and
13. The sidewalk vendor has satisfactorily provided all information
requested by the Finance Director, or the Finance Director's designee, to
consider the vendor's application.
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 shall expire 12 months from date of
issuance.
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5.97.050 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,
D. All signage and advertising related in any way to the sidewalk vendor shall
be attached to the sidewalk vending receptacle, if any, or the sidewalk vendor's
person;
E. Sidewalk vendors shall not use any electrical, flashing, wind powered, or
animated sign;
F. Sidewalk vending receptacles shall not be stored on public property and
shall be removed when not in active use by a sidewalk vendor;
G. All sidewalk vendors shall allow a police officer, firefighter, life safety
services officer, code enforcement officer, health inspector, or other government
official charged with enforcing laws related to the street vendor's activities, 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;
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Ordinance No. 2018-19
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H. Sidewalk vending receptacles and any attachments thereto shall not
exceed a total height of four (4) feet, a total width of four (4) feet, and a total length
of four (4) feet;
I. No sidewalk vending receptacle shall contain or use propane, natural gas,
batteries, or other explosive or hazardous materials;
J. 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;
K. Sidewalk vendors that sell food shall have in their possession at all times
they are conducting sidewalk vending activities, the health permit required by
Chapter 6.08 of this Code, or any successor chapter;
L. 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. Sidewalk vendors
shall not leave any location without first picking up, removing, and disposing of all
trash or refuse from their operation;
M. Sidewalk vendors shall immediately clean up any food, grease or other fluid
or item related to sidewalk vending activities that falls on public property;
N. Sidewalk vendors shall maintain a minimum four (4) foot clear accessible
path free from obstructions, including sidewalk vending receptacles and customer
queuing area;
O. Sidewalk vendors shall comply with the noise standards provided in
Chapters 10.26 and 10.28 of this Code, or any successor chapters;
P. In passive parks, sidewalk vendors shall not approach persons to sell food
or merchandise;
Q. In active parks, sidewalk vendors shall not interfere in any way with anyone
engaged in a sporting activity and shall not approach spectators who are watching
a sporting activity to sell food or merchandise; and
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R. Sidewalk vendors shall ensure that all required insurance is in effect prior
to conducting any sidewalk vendor activities and maintained for the duration of the
permit.
5.97.060 Prohibited Activities and Locations
A. Sidewalk vendors shall comply with all operating conditions including those
conditions set forth in Section 5.97.050, or any successor sections.
B. 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.
C. 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 of alcohol, marijuana, adult oriented material, tobacco
products, products that contain nicotine or any product used to smoke/vape
nicotine or marijuana;
4. Using an open flame on or within any sidewalk vending receptacle;
5. Using an electrical outlet or power source that is owned by the City
or another person other than the sidewalk vendor;
6. Conducting sidewalk vending activities:
a. Anywhere in the City between the hours of 10:00 p.m. and
7:00 a.m. daily;
b. On sidewalks or pathways directly adjacent to or within
residential areas, between the hours of 9:00 p.m. and 8:00 a.m. daily;
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7. 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 sidewalk vendor to leave or after the person has
declined the offer to purchase food or merchandise;
8. Knowingly making false statements or misrepresentations during the
course of offering food or merchandise for sale;
9. Blocking or impeding the path of the person(s) being offered food or
merchandise to purchase;
10. 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;
11. Touching the person(s) being offered food or merchandise without
that person(s)' consent;
12. Advertising any product or service that is not related to the food or
merchandise being offered for immediate sale; or
13. Placing their sidewalk vending receptacles outside of any pathway
or sidewalk when engaging in sidewalk vending activities.
D. Sidewalk vendors shall not engage in sidewalk vending activities at the
following locations:
1. The Oceanfront Boardwalk, including any portion of paved path
extending from the Oceanfront Boardwalk into the beach;
2. The Balboa Island Boardwalk;
3. East Balboa Boulevard between Adams Street and A Street, Marine
Avenue on Balboa Island, and East Coast Highway between Avocado
Avenue and Hazel Drive;
4. The Civic Center;
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5. Any public property that does not meet the definition of a sidewalk or
pathway including, but not limited to, any alley, beach, pier, square, street,
street end, or parking lot;
6. Within two -hundred (200) feet of:
a. A police station;
b. A fire station;
C. A lifeguard tower;
d. Lifeguard headquarters;
e. A permitted certified farmers' market or swap meet during the
limited operating hours of that certified farmers' market or swap
meet;
f. An area designated for a special event permit issued by the
City, during the limited duration of the special event, if the City
provides the sidewalk vendor any notice, business interruption
mitigation, or other rights the City provided to any affected
businesses or property owners under the City's special event permit;
7. Within one -hundred (100) feet of:
a. Another sidewalk vendor;
b. A public or private school, a place of worship, or a large or
general child day-care facility;
C. The intersection of a street and a sidewalk;
d. Any public picnic area, playground area or playground
equipment;
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e. Any public community center, pier, athletic field, sailing
center, softball/baseball diamond, basketball court, handball court,
pickleball court, tennis court, soccer field, or volleyball court;
f. Any public marina;
g. The portion of any City facility that is renting merchandise or
selling food to the public or where the rental merchandise is stored;
h. Any police officer, firefighter, lifeguard or emergency medical
personnel who are actively performing their duties or providing
services to the public;
8. Within twenty-five (25) feet of a:
a. Fire hydrant;
b. Curb which has been designated as white, yellow, green,
blue, or red zone, or a bus zone;
C. Automated teller machine;
d. Driveway, alley, or entrance to a parking lot or parking garage;
e. Entrance or exit to a building, structure or facility; or
f. Trash receptacle, bike rack, bench, bus stop, restroom, or
similar public use items.
E. Stationary sidewalk vendors shall not sell food or merchandise or engage
in any sidewalk vending activities:
1. On any sidewalk or pathway that is not a minimum width of eight (8)
feet;
2. At any park where the City has signed an agreement for concessions
that exclusively permits the sale of food or merchandise by a
concessionaire; or
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3. On sidewalks or pathways directly adjacent to or within residential
areas.
5.97.070 Penalties
Violations of this chapter shall not be prosecuted as infractions or misdemeanors
and shall only be punished by the following administrative citation and revocation
structure:
A. Except as otherwise provided in this chapter, any violation of this chapter
shall be assessed administrative fines in the following amounts:
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;
3. An administrative fine not exceeding five hundred dollars ($500) for
each additional violation within one (1) year of the first violation;
B. 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 shall be
assessed administrative fines in the following amounts:
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;
3. An administrative fine not exceeding one thousand dollars ($1,000)
for each additional violation within one (1) year of the first violation,
C. Upon proof of a valid permit issued by the City, the administrative fines set
forth in Subsection 5.97.070(B) shall be reduced to the administrative fines set
forth in Subsection 5.97.070(A), or any successor sections; and
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D. The Finance Director, or the Finance Director's designee, may revoke a
permit issued to a sidewalk vendor for the term of that permit upon the fourth
violation or subsequent violations within one (1) year of the first violation.
5.97.080 Appeals
A. Administrative citations shall be appealed in the following manner:
1. Any recipient of an administrative citation may request an ability -to -
pay determination, contest that there was a violation of the Code, and/or
that he or she is the responsible person, by completing a request for hearing
form and returning to the City's Finance Department in accordance with
Section 1.05.060(A) of this Code, or any successor section.
Notwithstanding the time limits set forth in Section 1.05.060(A), any person
requesting a hearing and ability -to -pay determination may file the request
within the time frames set forth in Government Code Section 51039(f)(1), or
any successor section;
2. Any recipient of an administrative citation may file for a hardship
waiver in accordance with Section 1.05.060(B) of this Code, or any
successor section;
3. All appeals of administrative citations shall be heard by a Hearing
Officer designated pursuant to Section 1.05.070(A) of this Code, or any
successor section, and the Hearing Officer may be disqualified as provided
in Section 1.05.070(B), or any successor section;
4. In addition to the powers set forth in Section 1.05.070(C)(1) through
(4), and (6) through (7) of this Code, or any successor section, the Hearing
Officer shall have the power to:
a. Reduce the fine based upon the person's ability to pay the
fine;
b. If the Hearing Officer finds the person meets the criteria
described in subdivision (a) or (b) of Government Code Section
68632, or any successor section, the Hearing Officer, shall order the
City to accept, in full satisfaction, twenty (20) percent of the
administrative fine imposed pursuant to this chapter;
C. 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;
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5. All appeals of administrative citations shall be conducted in
accordance with Section 1.05.080 of this Code, or any successor section,-
6.
ection;
6. After considering all of the testimony and evidence submitted at the
hearing, the Hearing Officer shall issue a written decision within ten (10)
days of the hearing and shall list in the decision the reasons for that
decision;
a. The Hearing Officer may uphold or deny the administrative
citation or take any other action within the Hearing Officer's power;
b. If the Hearing Officer determines that the administrative
citation should be upheld and a fine assessed, then the amount of
the fine assessed that is on deposit with the City shall be retained by
the City and any remainder on deposit with the City, if any, shall be
promptly returned;
c. If the Hearing Officer determines that the administrative citation
should be denied, or imposes an alternative disposition, and the fine
was deposited with the City, then the City shall promptly refund the
amount of the deposited fine;
d. The decision of the Hearing Officer shall be final; and
e. The recipient of the administrative citation shall be served with
a copy of the Hearing Officer's written decision in the manner
prescribed by Section 1.08.080 of this Code, or any successor
section.
B. Decisions of the Finance Director, or the Finance Director's designee, to
revoke a permit shall be appealed in the following manner:
1. Appeals shall be initiated within fifteen (15) calendar days of service
of notice of the decision in accordance with Section 1.08.080 of this Code,
or any successor section;
2. Appeals of decisions shall be made in writing on forms provided by
the City;
3. Decisions that are appealed shall not become effective until the
appeal is resolved;
4. All appeals of decisions shall be heard by a Hearing Officer
designated pursuant to Section 1.05.070(A) of this Code, or any successor
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section, and the Hearing Officer may be disqualified as provided in Section
1.05.070(8), or any successor section.
5. The Hearing Officer shall have the powers set forth in Section
1.05.070(C)(1) through (4), and (6) of this Code, or any successor section;
6. A hearing before the Hearing Officer may be set for a date that is not
less than fifteen (15) and not more than sixty (60) days from the date that
the request for hearing is filed in accordance with the provisions of this
chapter. The responsible person requesting the hearing shall be notified of
the time and place set for the hearing at least ten (10) days prior to the date
of the hearing. The City and responsible person may mutually agree to
waive, modify or change the date of the preceding;
7. All appeals of decisions shall be conducted in accordance with
Section 1.05.080(B), (D), (F), and (G), or any successor section, and shall
comply with the following additional procedures:
a. At least ten (10) days prior to the hearing, the responsible
person requesting the hearing shall be provided with copies of the citations,
reports and other documents or evidence submitted or relied upon by the
Finance Director, or the Finance Director's designee;
b. No other discovery is permitted. Formal rules of evidence shall
not apply. Administrative hearings are intended to be informal in nature. Any
relevant evidence shall be admitted if it is the type of evidence on which
reasonable persons are accustomed to rely in the conduct of serious affairs,
regardless of the existence of any common law or statutory rules, which
might make improper the admission of such evidence over objection in civil
actions in courts of competent jurisdiction in this State. Irrelevant and unduly
repetitious evidence shall be excluded;
C. The failure of any responsible person who has filed an appeal
to appear at the hearing shall constitute a failure to exhaust their
administrative remedies;
8. After considering all of the testimony and evidence submitted at the
hearing, the Hearing Officer shall issue a written decision within ten (10)
days of the hearing and shall list in the decision the reasons for that
decision:
a. The Hearing Officer may uphold or deny the decision and the
decision of the Hearing Officer shall be final; and
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b. The responsible person who has filed an appeal shall be
served with a copy of the Hearing Officer's written decision, by the City
Clerk, in the manner prescribed by Section 1.08.080 of this Code, or any
successor section.
Section 4: NBMC Subsection 6.05.010(J) is amended to read as follows:
J. "Retail food vendor" means any store, shop, sales outlet, sidewalk vendor
as defined in Chapter 5.97 of this Code, or any successor chapter, or other
establishment, including a grocery store or a delicatessen, other than a restaurant,
located within the City of Newport Beach that sells prepared food.
Section 5: Subsection "8" is hereby added to NBMC Subsection 10.08.030(B)
to read as follows:
8. For sidewalk vendors in compliance with Chapter 5.97 of this Code, or any
successor chapter.
Section 6: Subsection "I" is hereby added to NBMC Section 11.04.070 to read
as follows:
I. Engaging in any sidewalk vending activity unless conducted in compliance
with Chapter 5.97 of this Code, or any successor chapter.
Section 7: Subsection "C" is hereby added to NBMC Section 11.04.140 to read
as follows:
C. Notwithstanding this chapter, unlawful sidewalk vending activities shall be
punished in accordance with Chapter 5.97 of this Code, or any successor chapter.
Section 8: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 9: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The City
Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
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Section 10: 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 11: Except as expressly modified in this ordinance, all other sections,
subsections, sentences, clauses or phrases set forth in the Newport Beach Municipal
Code shall remain unchanged and shall be in full force and effect.
Section 12: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 13th day of November, 2018, and adopted on the 27th day
of November, 2018, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
MARSHALL "DUFFY" DUFFIELD, MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
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APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
AAMON C. HARP, CITY ATTORNEY
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