Los Banos City Zoning Code
ARTICLE 45
SIDEWALK VENDING
§ 9-3.4500 Purpose.
(a)
The purpose of this article is to establish a sidewalk vendor permitting and regulatory program that complies with Senate Bill 946. The provisions of this article allow the City to encourage small business activities by removing total prohibitions on portable food stands and certain forms of solicitation while still permitting regulation and enforcement of unpermitted sidewalk vending activities to protect the public's health, safety and welfare.
(b)
The City Council hereby finds that, to promote the health, safety and welfare, restrictions on street vending are necessary to:
(1)
Prevent interference with the performance of police, firefighter, and emergency medical personnel services;
(2)
Prevent interference with 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;
(3)
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; and
(4)
Reduce exposure to the City from personal injury or property damage claims and litigation.
(§ 1, Ord. 1171, eff. June 14, 2019)
§ 9-3.4510 Definitions.
The following words and phrases, whenever used in this article, shall mean as follows:
means a location operated in accordance with Chapter 10.5 of Division 17 of the Food and Agricultural Code and any regulations adopted pursuant to that chapter.
means the Community and Economic Development Director or the Director's designee.
means one or more individuals, groups, businesses, business trusts, companies, corporations, joint ventures, joint stock companies, partnership, entities, associations, clubs, or organizations composed of two or more individuals (or the manager, lessee, agent, servant, officer, or employee of any of them), whether engaged in business, nonprofit, or any other activity.
means a sidewalk vendor who moves from place to place and stops only to complete a transaction.
means a person who sells food or merchandise from a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other non-motorized conveyance, or from one's person, upon a public sidewalk or other pedestrian path.
means a sidewalk vendor who vends from a fixed location.
means a location operated in accordance with Article 6 of Chapter 9 of Division 8 of the Business and Professions Code, and any regulations adopted pursuant to that article.
means a permit issued by the City for the temporary use of, or encroachment on, the side-walk or any other public area, including, but not limited to, an encroachment permit, special event permit, block party, or temporary use permit, for purposes including, but not limited to, City or privately sponsored parades, street fairs, or street closures.
shall mean the sale, offer for sale, soliciting, preparation, display, barter, or exchange, of prepared, pre-packaged or unprepared, unpackaged food or foodstuffs, beverages, goods, or merchandise of any kind.
means a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other non-motorized conveyance used for vending, whether mobile or stationary, that is not a vehicle as defined in the California Vehicle Code.
(§ 1, Ord. 1171, eff. June 14, 2019)
§ 9-3.4520 Permit required.
(a)
No person may conduct or engage in sidewalk vending in the City without first obtaining and having in his or her possession a sidewalk vending permit issued by the City in accordance with this article. No permit granted herein shall confer any vested right to any person or business for more than the permit period. All sidewalk vendors subject to this article shall comply with the provisions of this article as they may be amended hereafter.
(b)
A sidewalk vending permit shall not be required for events permitted pursuant to a lawfully issued temporary special permit.
(§ 1, Ord. 1171, eff. June 14, 2019)
§ 9-3.4530 Permit application.
To apply for a sidewalk vending permit, a person must submit an application with the Director or designee, accompanied by a nonrefundable processing fee in an amount established by resolution of the City Council. The application shall be in a form prescribed by the Director and shall contain the following:
(a)
The legal name and current address and telephone number of the applicant;
(b)
If the applicant is an agent of an individual, company, partnership, corporation, or other entity, the name and business address of the principal;
(c)
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 cart;
(d)
The name, address, and telephone number of all persons that will be employed as roaming sidewalk vendors or at a sidewalk vending cart;
(e)
The number of sidewalk vending carts the sidewalk vendor will operate within the City under the permit;
(f)
The day(s) and hours of operation the sidewalk vendor intends to operate at such location(s);
(g)
Whether the vendor intends to operate as a stationary sidewalk vendor or a roaming sidewalk vendor and, if roaming, the intended path of travel;
(h)
The dimensions of the sidewalk vendor's sidewalk vending cart(s), including a picture of all sides of each side-walk vending cart operating under the permit and any signs that will be affixed thereto;
(i)
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 cart for food preparation, and the type of heating element, if any;
(j)
If the sidewalk vendor is selling merchandise, a description of the merchandise to be sold;
(k)
If stationary, the sidewalk vendor shall provide a description of the proposed vending location, including identification of major cross streets and the side of the street on which vending will occur (if applicable), along with a photo or depiction of said location;
(l)
If roaming, the sidewalk vendor shall provide a sketch of the intended path of travel;
(m)
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;
(n)
If the sidewalk vendor is selling food or food products, certification of completion of a food handler course and proof of all required approvals and a copy of the required health permit from the Merced County Department of Public Health;
(o)
An acknowledgment that the sidewalk vendor will comply with all other generally applicable local, State, and Federal laws;
(p)
A certification that, to their knowledge and belief, the information contained within the application is true;
(q)
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;
(r)
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 their own risk;
(s)
An acknowledgement that the sidewalk vendor will obtain and maintain throughout the duration of any permit issued under this article insurance required by this article;
(t)
Any other reasonable information regarding the time, place, and manner of the proposed vending;
(u)
Prior to the issuance of a sidewalk vendor permit, the applicant shall cause to be filed with the Director a LiveScan background check, including a LiveScan background check for all employees engaging in vending activities, conducted by the California Department of Justice within the previous six months of the application date. The Director shall furnish each applicant with a LiveScan request form for use at the Los Banos Police Department.
(v)
No person shall engage in, conduct or carry on the business of a sidewalk vendor unless there is on file with the City, in full force and effect at all times, documents issued by an insurance company authorized to do business in the State of California evidencing that the operator is insured (and naming the City as an additional insured) under a liability insurance policy providing minimum coverage of One Million and No/100ths ($1,000,000.00) Dollars for injury or death arising out of the sidewalk vending activities. All insurance companies affording coverage shall be required to add the City as an additional insured under their insurance policy. A certificate of insurance and a copy of the policy endorsement shall be provided to the City prior to the issuance of a sidewalk vendor permit.
(w)
Prior to issuance of a sidewalk vendor permit, the applicant shall have any vending cart to be used for vending inspected for safety by the Fire Department.
(§ 1, Ord. 1171, eff. June 14, 2019)
§ 9-3.4540 Criteria for approval or denial of permit.
(a)
Within 30 calendar days of receiving a complete application, the Director, or the 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 sidewalk vending activity 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 sidewalk vending activity 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 sidewalk vending activity will not constitute a fire hazard, and all proper safety precautions will be taken;
(4)
The 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;
(5)
The applicant 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 article;
(6)
The applicant has not had a permit revoked within the past 12 months;
(7)
The applicant's application contains all required information;
(8)
The applicant has not made a materially false, misleading or fraudulent statement of fact to the City in the application process;
(9)
The applicant has satisfied all the requirements of this article;
(10)
The applicant has paid all applicable fees;
(11)
The applicant is required to register under the provisions of California Penal Code Section 290;
(12)
Within three years of the date of the application, the applicant has been convicted in a court of competent jurisdiction or pled nolo contendere to any felony offense involving the sale of a controlled substance specified in California Health and Safety Code Section 11054, 11055, 11056, 11057 or 11058, or at the time of application is on probation or parole for any offenses set forth in this section for an offense that was committed within three years of the date of the application.
(b)
If the permit is denied, written notice of such denial and the reasons therefor shall be provided to the applicant.
(§ 1, Ord. 1171, eff. June 14, 2019)
§ 9-3.4550 Permit expiration and renewal.
A sidewalk vending permit shall be valid for 12 months from the date of issuance and shall expire and become null and void on the anniversary of its issuance. A person may apply for a permit renewal on a form provided by the City prior to the expiration of his or her active sidewalk vending permit.
(§ 1, Ord. 1171, eff. June 14, 2019)
§ 9-3.4560 Permit rescission.
The Director may rescind a permit issued to a sidewalk vendor for a fourth violation or subsequent violation of this article. A sidewalk vendor whose permit is rescinded may apply for a new sidewalk vending permit upon the expiration of the term of the rescinded permit.
(§ 1, Ord. 1171, eff. June 14, 2019)
§ 9-3.4570 Appeals.
The decision of the Director or designee may be appealed as provided by the appeal procedure provided in Part 6 of Article 23 of this chapter.
(§ 1, Ord. 1171, eff. June 14, 2019)
§ 9-3.4580 Permits Nontransferable.
A sidewalk vendor permit is nontransferable. Any change in ownership or operation of a sidewalk vendor or sidewalk vending cart requires a new permit under this article.
(§ 1, Ord. 1171, eff. June 14, 2019)
§ 9-3.4590 Operating requirements.
All sidewalk vendors shall comply with the following:
(a)
No sidewalk vendor shall vend in any of the following locations:
(1)
Upon or within any roadway, median strip, or dividing section.
(2)
Along sidewalks, pathways, courtyards, and grounds adjacent to the buildings and facilities that make up the Los Banos Community Center, the Los Banos City Hall, the Los Banos Courthouse, the Los Banos Public Library, the Los Banos Police Station, the Los Banos Fire Station(s), the Memorial Hospital of Los Banos, and along the sidewalks of Pacheco Boulevard, Mercey Springs Road, Badger Flat Road, Pioneer Road, H Street from 2nd Street to Badger Flat Road, within the Los Banos Rail Corridor and Canal Side Trails.
(3)
Within 200 feet of a permitted certified farmers' market, a swap meet, or an area designated for a temporary special permit. This prohibition shall be limited to the operating hours of the market or swap meet, or the limited duration of the temporary special permit.
(4)
Within 300 feet of the property line of any public or private school grounds, between the hours of 8:00 a.m. and 5:00 p.m. each day that school is in session.
(5)
Within 300 feet from any place of worship or child care center.
(6)
Within 100 feet of a public picnic area, playground area, playground equipment, or athletic field or court.
(7)
Within 400 feet of another sidewalk vendor.
(8)
Within 25 feet of any street or alley intersection.
(9)
Within 10 feet of a fire hydrant or other emergency facility.
(10)
Within 10 feet of a curb that has been designated as a white, yellow, green, blue, or red zone, or a bus zone.
(11)
Within 25 feet of any driveway approach or entrance to a parking lot or parking garage.
(12)
Within 10 feet of an entrance or exit of any building or structure.
(13)
Within 10 feet of any public trash receptacle, bike rack, bench, bus stop, or similar public use item.
(14)
In any City parking lot.
(15)
On private property without the consent of the property owner.
(b)
Stationary sidewalk vendors shall not vend at any park where the City has signed an agreement for concessions that exclusively permits the sale of food or merchandise by a concessionaire.
(c)
Stationary sidewalk vendors shall not vend in areas that are zoned residential.
(d)
No sidewalk vendor shall vend in a manner that blocks or obstructs the free movement of pedestrians, bicycles, or vehicles. Sidewalk vendors must at all times provide a clearance of not less than four feet on all sidewalks or pedestrian areas so as to enable persons to freely pass while walking, running, or using mobility assistance devices.
(e)
Sidewalk vending is permitted between the hours of 9:00 a.m. to 7:00 p.m., daily, except as follows:
(f)
Sidewalk vendors shall provide a trash receptacle for customers and ensure proper disposal of customer trash. The trash receptacle must be large enough to accommodate customer trash without resort to existing trash receptacles located on any block for use by the general public.
(g)
Prior to leaving any vending location, the sidewalk vendor shall pick up, remove, and dispose of all trash generated by the vending operations or the vendor's customers within a 15 foot radius of the vending location. Sidewalk vendors shall not throw, deposit, or leave, or permit to be thrown, deposited, or left, any trash, food, or other discarded or abandoned objects, in or upon any street, sidewalk, path, gutter, storm drain, inlet, catch basin, or other drainage structure, or upon any public or private lot of land in the City, so that the same might be or become a pollutant.
(h)
Sidewalk vendors shall possess and display in plain view on the vending cart and a valid sidewalk vending permit issued pursuant to this article and if selling food a valid health permit from Merced County Department of Public Health. Sidewalk vendors shall possess at all times while vending any other permit required by any governmental agency. A side-walk vendor engaged in sidewalk vending shall wear, on their person, identification with a picture and name issued by the City.
(i)
Vending carts shall not be chained, fastened, or affixed at any time to any building or structure, including, but not limited to, lampposts, parking meters, traffic signals, fire hydrants, benches, bus shelters, trash cans, street signs, trees, or other objects within the public right-of-way. No vending cart shall become a permanent fixture on the vending site or be considered an improvement to real property.
(j)
Vending carts shall not be left unattended or stored on public property or within the public right-of-way.
(k)
Sidewalk vendors shall comply with all applicable State and local laws, including, without limitation, State food handling, labeling, and preparation requirements; fire codes and regulations; and the Americans with Disabilities Act of 1990 and other disability access standards (both State and Federal).
(l)
No tables, chairs, fences, shade structures, balloons, flags, banners, on-site furniture, or any freestanding signs shall be permitted in conjunction with the sidewalk vendor's vending activities.
(m)
The vendor shall not attach or use any water line, electrical line, or gas line during vending operations.
(n)
Exterior storage or display of refuse, equipment, materials, goods, wares, or merchandise associated with the vendor is prohibited.
(o)
No sound amplification equipment, music or live entertainment may be used in conjunction with any sidewalk vendor sales.
(p)
A vending cart shall not be wider than four feet at its widest point (exclusive of waste containers) and no longer than seven feet at its longest point (exclusive of waste containers). A canopy or other similar overhead cover may be used but no portion of this cover (exclusive of vertical support poles or struts) shall be lower than seven feet above the side-walk. Any and all vertical supports for this cover shall be totally confined within the horizontal dimensions (width and length) of the vending cart.
(q)
Any power used in a vending cart shall be contained wholly within the cart. No cords, hoses, pipes, bottles, canisters, or other conductors or containers of power or fuel shall extend from any source external to or detached from the vending cart while the vending cart is in operation upon a City sidewalk.
(§ 1, Ord. 1171, eff. June 14, 2019)
§ 9-3.4600 Administrative citations.
(a)
A violation of this article by a sidewalk vendor who has a valid sidewalk vending permit from the City is punishable only by an administrative citation pursuant to Chapter 11 Title 4 of this Code in amounts not to exceed the following:
(b)
A person engaged in sidewalk vending without a valid City sidewalk vending permit is punishable by an administrative citation pursuant to Chapter 11 Title 4 of this Code in amounts not to exceed the following, in lieu of the amounts set forth in paragraph (a):
(1)
Two Hundred Fifty and No/100ths ($250.00) Dollars for a first violation.
(2)
Five Hundred and No/100ths ($500.00) Dollars for a second violation within one year of the first violation.
(3)
One Thousand and No/100ths ($1,000.00) Dollars for each additional violation within one year of the first violation.
(4)
Upon proof of a valid sidewalk vending permit issued by the City, the administrative citations set forth in this paragraph shall be reduced to amounts set forth in subsection (a).
(c)
A violation of this article shall not be punishable as an infraction or misdemeanor. No person alleged to have violated the provisions herein shall be subject to arrest except when otherwise permitted by law.
(d)
Failure to pay an administrative citation issued pursuant to this section shall not be punishable as an infraction or misdemeanor. Additional fines, fees, assessments, or any other financial conditions beyond those authorized herein shall not be assessed.
(e)
When assessing administrative citations pursuant to this section, the hearing officer shall take into consideration the person's ability to pay the fine. The City shall provide the person with notice of his or her right to request an ability-to-pay determination and shall make available instructions or other materials for requesting an ability-to-pay determination. The person may request an ability-to-pay determination at adjudication or while the judgment remains unpaid, including when a case is delinquent or has been referred to a comprehensive collection program.
(f)
If the person meets the criteria described in subdivision (a) or (b) of Government Code Section 68632, the City shall accept, in full satisfaction, 20% of an administrative citation imposed pursuant to this article.
(g)
The hearing officer may allow a person to complete community service in lieu of paying the total administrative citation, may waive the administrative citation, or may offer an alternative disposition.
(§ 1, Ord. 1171, eff. June 14, 2019)