Berkeley Municipal Code Ch. 9.49 Food Vending on Sidewalks and Rights-of-Way

*For health and sanitation regulations generally, see Titles 11 and 12 of this code.

A contract with the University of California which pertains to vending sites, that are regulated under this Ordinance, can be found on file in the Office of the City Clerk.

This chapter is enacted to regulate the vending of food and food products from food vending facilities on the public sidewalks and rights of way of the City. (Ord. 6702-NS § 1, 2002)

For the purpose of this ordinance the following terms have the following meanings unless it appears from their context that a different meaning is intended.

A. "City Manager" means the City Manager or their designee, except when specified.

B. "Employee" means any person hired or paid compensation by, or any person under contract to, a food vendor.

C. "Food vending" is the business of selling or causing to be sold, from a food vending facility, any kind of food, whether hot, cold, fresh prepared or packaged.

D. "Food vending facility" includes both a "mobile food preparation unit" as defined in Health & Safety Code Section 113815 and a "mobile food facility" as defined in Health & Safety Code Section 113900.

E. "Food vendor" is a person who is in the business of food vending and has received all required approvals for doing so under this chapter.

F. "Identification card " or "ID card" is that card issued by the City under this chapter to identify persons authorized to vend food.

G. "Person" is any individual, co-partnership, firm, association, joint stock company, corporation or combination of individuals of whatever form or character.

H. "Right of way" shall mean land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved and dedicated to the general public for street, highway, alley, public utility, or pedestrian walkway purposes whether or not said land has been improved or accepted for maintenance by the City. "Public right of way" includes but is not limited to, streets, roadways, planter strips and sidewalks.

I. "Sidewalk" is that area of improved real property between any curb face and the property line of adjoining real property.

J. "Site allocation" is the allocation by the City to an applicant of a site on which the applicant may engage in food vending.

K. "Vending equipment" includes but is not limited to any materials, merchandise, tools, carts, tables or other items owned by, in the possession of, or associated with a licensed vendor. (Ord. 6702-NS § 1, 2002)

It is unlawful for any person to engage in food vending except pursuant to this chapter, except as may be permitted at Farmers’ Markets or other events permitted by the City under Chapters 6.46 or 13.44 of this code. (Ord. 6702-NS § 1, 2002)

Food vending shall be allowed only in commercially zoned areas along Bancroft Way, College Avenue, Telegraph Avenue, and Shattuck Avenue, at locations specified by the City Manager. (Ord. 7594-NS § 1, 2018; Ord. 6702-NS § 1, 2002)

A. Every person desiring to engage in food vending shall file an application with the City pursuant to procedures established by the City Manager.

B. A person engaged in food vending may hold only one (1) license to operate such a business at any given time.

C. During September of each year, the City Manager will evaluate all applications that have been received during the twelve (12) months prior to September 1st.

D. The City Manager shall review applications according to the following criteria:

1. The extent to which the applicant would be personally and actively engaged in the preparation and/or sale of products;

2. The applicant’s ability to successfully operate a vending business. Previous experience in street vending or comparable activity is desirable;

3. The quality of the business plan, including intended cuisine to be offered, financial statements and plan of operations, submitted by the applicant;

4. Whether the applicant’s proposed food vending business would be a new business, as opposed to an outlet for, or associated with an existing business;

5. The quality and features of the food vending facility proposed to be used, as submitted with the application; and

6. The applicant’s history of compliance or noncompliance with City ordinances or state laws relating to business regulation, street vending, food service or health.

E. The City Manager shall rank the applicants according to these criteria, and may reject applications that are unacceptable.

F. No later than October 31st of each year, the City Manager shall approve as many acceptable applications as there are open sites, in order of ranking, and shall issue food vending licenses, and assign sites, to the successful applicants.

G. Determinations under this section are vested in the sole discretion of the City Manager. (Ord. 6702-NS § 1, 2002)

Food vendors that the City Manager determines were in operation as of February 1, 2002, shall be allowed to continue to operate through December 31, 2003 under the following terms:

A. They may continue to use their existing facility.

B. They must remain current in payment of all fees pertaining to their food vending business.

C. Their current licenses will expire without further option for renewal on December 31, 2003 and they must vacate their site at that time unless they are issued a food vending license and site allocation during the transitional period or a subsequent application review process. (Ord. 6739-NS § 1, 2003; Ord. 6702-NS § 1, 2002)

A. Upon approval of an application, the City Manager shall issue a food vending license to the food vendor and an identification (ID) card to the food vendor and each employee.

B. Every individual engaged in food vending shall obtain a food vendor ID card and have an unexpired ID card in their possession at all times while they are vending food.

C. Food vending licenses and ID cards expire annually at midnight on December 31st.

D. All food vending licenses are subject to renewal as set forth in Section 9.49.080.

E. Approval of a food vending license under this chapter does not exempt the licensee from Chapter 9.04, and licensees are required to pay the business license tax imposed by Chapter 9.04. (Ord. 6702-NS § 1, 2002)

The City Manager shall allocate available sites in commercially zoned areas to licensed food vendors in their sole discretion after considering all factors relevant to managing the right of way such as accessibility, safety, aesthetics, cleanliness, and obstruction of other competing uses of the right of way. The City Manager may require food vendors to move to different sites at any time, in their sole discretion, but not more frequently than once in ninety (90) days. Use of sites on property owned by the University of California that are not within the public right of way shall be subject to approval by the University. (Ord. 6702-NS § 1, 2002)

A. Food vending licenses must be renewed every year, and each renewal is good for one (1) year only.

B. No food vending license may be renewed more than four times. However a food vendor who is not eligible for further renewals may reapply for a food vending license and site allocation under Section 9.49.050 and compete with other applicants.

C. No later than October 31st of each year, each licensee shall submit an application for renewal of their license, pursuant to procedures established by the City Manager. No later than December 31st of each year the City Manager shall renew each license unless cause exists to suspend or revoke it as set forth in Section 9.49.150.

D. A decision by a designee of the City Manager not to renew a license may be appealed as set forth in Section 9.49.150. (Ord. 6702-NS § 1, 2002)

A. Food vending licenses are not transferable.

B. Upon written approval of the City Manager, a food vending business may be transferred to:

1. Any applicant ranked as acceptable by the City Manager during the most recent prior ranking of applications under Section 9.49.050; or

2. Any proposed transferee ranked as acceptable by the City Manager under the criteria set forth in Section 9.49.050.

C. The City Manager shall consider applications for transfers under the criteria set forth in Section 9.49.050.D, and may approve or deny any proposed transfer upon such terms as they deem in the public interest, consistent with those criteria.

D. A decision by a designee of the City Manager not to approve a transfer may be appealed as set forth in Section 9.49.150.

E. The transferee shall obtain a license under this chapter. (Ord. 6702-NS § 1, 2002)

A. Food vending facilities shall comply with standards established by the City Manager, as well as all applicable state and local health regulations. The City Manager may establish a list of food vending facilities that are permissible.

B. The following facility standards apply to the extent that they are consistent with applicable state law and to the nature of any given food vending facility.

C. All signage shall be properly-placed, well-designed and of high-quality, as set forth below:

1. Signage shall be proportional to the size of the cart and integrated with the overall design of the cart with respect to design, size and location.

2. The total area of all signs, including signs showing the name of the cart, advertising signs, menu and price lists, shall be kept to a minimum, however up to one-third of the front of a cart may be used to display the menu and price list.

3. Signs may not be moving or rotating, illuminated, or distracting in color, material, design or location.

4. Signs should be permanently attached to the interior or exterior of the cart. Signs may not project perpendicular to the walls of the cart, but must be affixed so that they lie flat against the cart.

5. All signage shall be produced to professional standards; handwritten and paper signs are not permitted.

6. Temporary signs are not permitted. No freestanding signs are permitted.

7. Any change to the approved signage other than modifying items on the menu must be submitted for approval, prior to installing the new signage.

8. Audio advertising by voice, electronic, or other means is prohibited.

D. Each food vending facility shall have a single waste receptacle with the capacity of at least 32 gallons available for use by customers at the exterior of the cart. The licensee shall arrange and pay for collection and disposal of the waste in a receptacle provided by the City, as determined by the City Manager. Alternatively, the City may elect to provide waste receptacles and charge licensees in the vicinity a fee for waste collection and disposal as part of the annual site allocation fee.

E. Storage of all materials, products, crates, and cartons must be accommodated inside of the cart, at all times.

F. Propane or other gas cylinders must be enclosed.

G. Tables, racks or sidewalk presentations are not allowed.

H. The owner of the facility is responsible for keeping the facility well-maintained, in good condition at all times, and completing all repairs and maintenance in a timely manner, but in any event no later than 15 days after written notice of the need for a repair under this ordinance. (Ord. 6702-NS § 1, 2002)

A. Food vendors shall be required to obtain a health permit from the Berkeley Department of Health and Human Services Division of Environmental Health. An application for such permit shall be on a form provided by the Division of Environmental Health. Prior to the issuance of the permit, the Division of Environmental Health may require such information as may be necessary to determine applicant’s compliance with City and state laws and regulations respecting food service operations.

B. Authorized representatives of the Division of Environmental Health are empowered to inspect food product vending equipment and require compliance with any and all City and state laws and regulations respecting food service operations. (Ord. 6702-NS § 1, 2002)

A. Food vending pursuant to this chapter is permitted only between the hours of 7:00 a.m. and 12:00 a.m.

B. Food vending facilities may not remain at their allocated sites or any other location on the public right of way between the hours of 1:00 a.m. and 6:00 a.m.

C. Food vending facilities may not be moved to or from an allocated site between 7:00 a.m. and 9:30 a.m. or 3:30 p.m. and 6:30 p.m., or after 1:00 a.m. (Ord. 7153-NS § 2, 2010; Ord. 6702-NS § 1, 2002)

A. Food vendors shall maintain their sales locations in a clean and hazard-free condition and failure to do so shall be cause for revocation or suspension of a license and/or site allocation.

B. Food vendors shall provide for collection and disposal of all waste they generate, consistent with all applicable state and local health standards, and shall contract with the City for collection and disposal of such waste. Food vendors may not dispose of their waste in publicly maintained trash containers. (Ord. 6702-NS § 1, 2002)

A. Food vendors shall indemnify and hold harmless the City and the Regents of the University of California, when relevant, and their constituent entities, officers and employees from any and all damages or injury to persons or property proximately caused by the act or neglect of the food vendor or by hazardous or negligent conditions maintained at their sales location. Acceptance and use of a food vending license constitutes indemnification under this paragraph.

B. Food vendors shall at all times maintain a policy of premises and products liability insurance for each license year or longer, naming the City of Berkeley and Regents of the University of California, when relevant, as additional insureds. Said insurance shall be for limits of not less than one million dollars combined single limit per occurrence covering liability for death or injury to persons (including products liability) and damage to property arising out of any act of the vendor, their agents and employees, in or connected with the operation of the licensed food vending business. A certificate of said insurance shall be furnished to the City of Berkeley. (Ord. 6702-NS § 1, 2002)

A. Any license may be revoked or suspended by the City Manager upon violation of this chapter or a public offense or violation by the licensee relating to the food vending activity.

B. Prior to suspension or revocation the affected food vendor shall be given written notice of the violation(s) upon which the suspension or revocation is to be based and a reasonable opportunity to cure said violation(s).

C. If any violation that is the subject of such a notice is not cured in a timely manner the food vendor’s license may be suspended or revoked upon written notice thereof by the City Manager. Such notice shall state with particularity the violation(s) upon which the suspension or revocation is based.

D. Upon a determination by the City Manager that a food vendor has committed three or more violations of the ordinance, after notice of and an opportunity to cure each violation, their license shall be revoked, and said food vendor shall be ineligible to be issued another license for ten years thereafter.

E. Any food vendor aggrieved by any decision of a designee of the City Manager under this section may appeal to the City Manager by filing with the City Manager a written statement setting forth in full the grounds of the appeal.

F. The City Manager may issue such regulations as may be reasonable and necessary to hear and determine such appeals. Such regulations, if issued, shall be in writing and available to any person so requesting them. The decision of the City Manager shall be final. (Ord. 6702-NS § 1, 2002)

A. A site allocation may be canceled at the request of a food vendor.

B. In the event of a cancellation, the site may be reallocated pursuant to this chapter. (Ord. 6702-NS § 1, 2002)

Food vendors shall provide financial reports, including operating income and expense statements, to the Director of Finance upon request; and shall make their financial records available for audit if requested by the Director of Finance or the Office of the City Auditor. (Ord. 6702-NS § 1, 2002)

The statements filed pursuant to the provisions of this chapter shall be deemed confidential in character and shall not be subjected to public inspection and shall be kept so that the contents shall not become known except to the person(s) charged with the administration of this chapter. (Ord. 6702-NS § 1, 2002)

The City Council may by resolution establish fees for the administration of this chapter, the privilege of using sidewalks and rights of way, and for transferring food vending businesses. (Ord. 6702-NS § 1, 2002)

A. Violations of this chapter are misdemeanors, but may be charged as infractions in the discretion of the citing officer.

B. Violations of this chapter may be a basis for suspension or revocation, as set forth in Section 9.49.150.

C. After reasonable notice and an opportunity to correct, the City may impound or close a food vending facility.

D. Violation of this chapter is hereby declared to be a public nuisance.

E. The remedies set forth in this chapter are cumulative. (Ord. 6702-NS § 1, 2002)