Downey Municipal Code Part 3.1 Sidewalk Vending

The City Council of the City of Downey hereby finds and declares that the vending of prepared or pre-packaged foods, goods, and/or wares at semi-permanent locations on public sidewalks and rights-of-way may pose unsafe conditions and special dangers to the public health, safety, and welfare of residents and visitors. The purpose of this part is to implement regulations on both roaming and stationary sidewalk vending that protect the public health, safety, and welfare of the community while complying with the requirements of general state law, as amended from time to time, to promote safe vending practices, prevent safety, traffic, and health hazards, and preserve the public peace, safety, and welfare of the community.

(Added by Ord. 19-1415, adopted 8-27-19)

For purposes of this part, the following words and terms are defined as follows:

"Certified farmers' market"

shall mean a location operated in accordance with Chapter 10.5 (commencing with Section 47000) of Division 17 of the California Food and Agricultural Code and any regulations adopted pursuant to that Chapter (including those contained in Section 9420.16 of this Code).

"City"

shall mean the City of Downey.

"Director"

shall mean the Director of Public Works, or designee thereof.

"Food"

shall mean any type of human edible substance, including any food product or beverage.

"Merchandise"

shall mean any goods or items that are not food. Merchandise does not include services.

"Person"

shall mean one or more natural persons, groups, businesses, business trusts, companies, corporations, joint ventures, joint stock companies, partnerships, 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.

"Roaming sidewalk vendor"

shall mean a sidewalk vendor who moves from place to place and stops only to complete a transaction.

"Sidewalk"

shall mean a public sidewalk, parkway, pedestrian path, or other public right-of-way provided for the exclusive use of pedestrians. A sidewalk shall not include streets, alleys, plazas, or City-owned parking lots or structures.

"Sidewalk vendor"

shall mean a person who vends from a vending cart or from one's person upon a sidewalk.

"Stationary sidewalk vendor"

shall mean a sidewalk vendor who vends from a fixed location.

"Swap meet"

shall mean a location operated in accordance with Article 6 (commencing with Section 21660) of Chapter 9 of Division 8 of the California Business and Professions Code, and any regulations adopted pursuant to that article.

"Temporary special permit"

shall mean a permit issued by the City for the temporary use of, or encroachment on, the sidewalk or other public area, including, but not limited to, an encroachment permit or special event permit.

"Vend" or "vending"

shall mean to barter, exchange, sell, offer for sale, display for sale, or solicit offers to purchase food or merchandise. Vend and vending does not include the offering of services.

"Vending cart"

shall mean a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other non-motorized conveyance used for vending that is not a vehicle as defined in the California Vehicle Code.

(Added by Ord. 19-1415, adopted 8-27-19)

No person shall engage in, conduct, or carry on the business of sidewalk vending, or cause, permit or suffer a person to engage in, conduct, or carry on the business of sidewalk vending, without a permit issued under the provisions of this part.

A sidewalk vending permit is not required for a certified farmers' market, swap meet, or any activity or event authorized by a temporary special permit.

(Added by Ord. 19-1415, adopted 8-27-19)

Every person, prior to engaging in, conducting, or carrying on the business of sidewalk vending shall file an application with the Public Works Department on a City-approved form. Such application shall be accompanied by a non-refundable application fee in an amount established by resolution of the City Council, and shall contain, at a minimum, the following:

(a) The legal name, date of birth, current mailing 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) Whether the applicant is seeking authorization to operate as a roaming sidewalk vendor or a stationary sidewalk vendor;

(d) A description of the food and/or merchandise the applicant proposes to vend;

(e) A description of any vending cart the applicant intends on using in conjunction with the vending operation – including measurements of the height, width, and depth of the vending cart;

(f) A description, map, or drawing of the areas/route in which the applicant proposes to vend;

(g) The hours per day and the days per week during which the applicant proposes to vend;

(h) If a stationary sidewalk vendor, a maintenance plan that includes litter pickup in the vicinity of the vending location;

(i) A copy of a current and valid business license issued pursuant to Article VI, Chapter 2, Part 1 of this Code;

(j) A copy of a current and valid California seller's permit issued to the applicant by the California Department of Tax and Fee Administration pursuant to California Revenue and Taxation Code Section 6067 (or any subsequently adopted amendment thereto);

(k) If the applicant proposes vending food, a certification of completion of a food handler course and proof of all required approvals from the Los Angeles County Department of Public Health – including a copy of the applicant's current and valid Los Angeles County Health Permit;

(l) A copy of the applicant's social security card, driver's license or identification card issued by the State of California, taxpayer identification number, or an identification card issued by another municipality;

(m) Proof of comprehensive liability insurance in an amount not less than $2,000,000. Such insurance shall name as additional insured the City of Downey, its officers and employees, and shall further provide that the policy shall not terminate or be cancelled without 30 days' advance written notice to the City of Downey;

(n) An agreement by the applicant to indemnify and hold harmless the City, its officers and employees, from any and all damages or injury to persons or property proximately caused by the act or neglect of the applicant or by hazardous or negligent conditions maintained at the applicant's vending location;

(o) Certification by the applicant, under penalty of perjury, that the information contained in the application is true to his or her knowledge and belief; and

(p) Any other reasonable information regarding the time, place, and manner of the proposed sidewalk vending activities.

(Added by Ord. 19-1415, adopted 8-27-19)

(a) Determination of Completeness. The Director of Public Works shall, within 15 calendar days, review the submission of any application for a sidewalk vending permit to determine if the application contains all of the requisite information set forth in Section 6544.3. Any application that is missing information required pursuant to Section 6544.3 or that is not accompanied by the requisite fee shall be deemed incomplete and shall not be processed by the Director. In such case, the Director shall issue a Notice of Incompleteness to the applicant specifying the information that is missing resulting in the incomplete application. Failure of the applicant to submit the missing information within 30 calendar days of the Notice of Incompleteness shall be deemed an administrative withdrawal of the sidewalk vending permit application by the applicant.

(b) Investigation and Action. Upon receipt of a complete sidewalk vending permit application (and requisite fees), the Director shall conduct a thorough investigation of the application and shall make a determination upon the application within 60 days of the Director's determination of completeness. The Director may request supplemental investigation, information, reports, and/or recommendations pertaining to relevant zoning, building, health, safety, fire, law enforcement, or other factors from any appropriate department of the City or other appropriate agency.

Notwithstanding the provisions of Article VI, Chapter 4 of this Code, the Director shall approve the issuance of a sidewalk vending permit unless he or she determines that any of the following disqualifications exist:

(1) The applicant has failed to submit any of the information, documentation, and/or fees required pursuant to Section 6544.3 of this part; or

(2) The applicant does not possess all Federal, State, and/or local permits, licenses, certificates, and/or approvals required to engage in the activity in which the applicant seeks to engage; or

(3) The applicant has made one or more material misstatements or misrepresentations in the application or supplemental information provided by the applicant; or

(4) The applicant's proposed vending operation, as described in the application, is inconsistent with the standards, conditions, and requirements set forth in this part; or

(5) The applicant has failed to demonstrate an ability to conform to the standards, conditions, or requirements set forth in this part; or

(6) The applicant has been convicted of any felony or misdemeanor offense involving moral turpitude within five years of the date of the application, or is otherwise still on probation or parole for a felony or misdemeanor involving moral turpitude; or

(7) The applicant has been convicted of any felony offense involving the sale of a controlled substance specified in California Health and Safety Code Section 11054, 11055, 11056, 11057 or 11058 within five years of the date of the application, or is otherwise on probation or parole for any offenses set forth in this section; or

(8) The applicant is required to register under the provisions of California Penal Code Section 290 (or an equivalent section in any other State); or

(9) If the application is for a renewal of a sidewalk vending permit or a subsequent permit, the applicant has failed to pay all previous administrative fines in connection with a previous violation of this part.

(Added by Ord. 19-1415, adopted 8-27-19)

If a sidewalk vending permit is denied pursuant to this part, the applicant shall be notified in writing of the denial of the permit, along with the grounds for denial. The Notice shall also advise the applicant of the ability to appeal the denial in the manner set forth in Section 6544.14(c) of this part. Notice shall be mailed to the applicant at the address listed in the application.

(Added by Ord. 19-1415, adopted 8-27-19)

A sidewalk vending permit issued pursuant to the provisions of this part shall automatically expire one year from the date issued, unless an earlier expiration date is noted on the permit.

(Added by Ord. 19-1415, adopted 8-27-19)

A sidewalk vending permit issued pursuant to the provisions of this part shall not be transferable to any other entity or person.

(Added by Ord. 19-1415, adopted 8-27-19)

Sidewalk vendors shall adhere to all operating requirements set forth in this part, and all restrictions, limitations, and operating requirements set forth in this part shall constitute conditions upon any sidewalk vending permit issued pursuant to this part.

(Added by Ord. 19-1415, adopted 8-27-19)

All sidewalk vendors shall comply with the following operating requirements and prohibitions, and each of these operating requirements and prohibitions shall constitute conditions of any sidewalk vending permit:

(a) Stationary sidewalk vendors shall only conduct vending operations at the location approved by the Department of Public Works, and shall display a City-issued sidewalk vending permit and business license on the street-side portion of the City-approved vending cart.

(b) Roaming sidewalk vendors shall only conduct vending operations along the route approved by the Department of Public Works, and shall display a City-issued sidewalk vending permit and business license on the City-approved vending cart; or, if no vending cart is utilized, a roaming sidewalk vendor shall keep the City-issued sidewalk vending permit and business license upon his or her person at all times while conducting vending operations.

(1) Roaming sidewalk vendors shall move continuously except when necessary to complete a sale.

(2) Roaming sidewalk vending within residential areas of the city is prohibited between the hours of 5:00 p.m. and 9:00 a.m. of the subsequent day.

(c) Sidewalk vendors shall not vend in the following locations:

(1) Within 25 feet of any street intersection;

(2) Within 25 feet of any traffic control device (including traffic signals and traffic signs);

(3) Within 25 feet of a fire hydrant or connection, fire call box, or other emergency facility;

(4) Within three feet of the edge of any curb;

(5) Within 25 feet of any driveway apron;

(6) Within 25 feet of a marked crosswalk;

(7) Within 25 feet of a curb return of an unmarked crosswalk;

(8) Within 25 feet of a bus bench or bus shelter;

(9) Within 25 feet of any entrance or emergency exit of any business during the hours that the business is open to the public or to persons having or conducting lawful business therein;

(10) Within 500 feet of any permitted certified farmers' market, permitted swap meet, or an area designated for use pursuant to a temporary special permit, during the operating hours or duration of the certified farmers' market, swap meet, or temporary special permit;

(11) Upon any sidewalk that is within 500 feet of the nearest property line of any property on which a school building is located between the hours of 7:00 a.m. and 5:00 p.m. of any school day;

(12) Within or on any median strip or dividing section of any street;

(13) Within any parking lot or parking structure;

(14) Within any landscaped area or on an unpaved surface;

(15) Within any public property that is not set aside for the exclusive use of pedestrians;

(16) Within any private property without having first obtained current and valid permits and licenses from the City of Downey for such activity.

(d) Sidewalk vendors shall not vend in a manner that blocks or obstructs the free movement of pedestrians on sidewalks, and must maintain a minimum of 48 inches of accessible path of travel, without obstruction, along the sidewalk upon which the vendor is vending so as to enable persons to freely pass while walking, running, or using mobility assistance devices.

(e) Sidewalk vendors shall not block any entrances to buildings, driveways, parking spaces, or windows.

(f) Sidewalk vendors shall not vend to customers in vehicles unless said vehicles are lawfully parked, and shall not cause vehicles to stop in traffic lanes or persons to stand in traffic lanes.

(g) Sidewalk vendors shall not sell, use, or vend any live animal(s), nor shall any sidewalk vendor vend adult-oriented material depicting, describing, or relating to specified anatomical areas or specified sexual activities [as defined by Section 9402.4 of this Code], alcohol, marijuana, or tobacco products that contain nicotine or any product used to smoke (or "vape") nicotine or marijuana.

(h) Sidewalk vendors shall not use or operate, or permit to be played, used, or operated, any radio, receiving set, musical instrument, phonograph, loudspeaker, sound amplifier, or other machine or device for the producing or reproducing of sound, in accordance with Section 4603 of this Code.

(i) Sidewalk vendors shall maintain the area immediately surrounding the vending area in a neat, clean, orderly, and sanitary condition. Prior to leaving any vending location, the sidewalk vendor shall pick up, remove, and lawfully dispose of all byproducts (including fats, oils, and grease) and litter generated by the vending operation (whether by the vendor or customer) within 25 feet of the vending location. Sidewalk vendors shall not cause, permit, or suffer any litter, food, or other discarded or abandoned object to be thrown, deposited, or left in or upon any street, sidewalk, gutter, storm drain, inlet, catch basin, or other drainage structure, or upon any public or private land in the City.

(j) Sidewalk vendors shall present, upon request, a valid California identification, sidewalk vending permit, business license, and other applicable license or permit, to any City official authorized to enforce the provisions of this part, as well as to any person to whom they are vending.

(k) Vending carts or other accessory equipment shall not touch, lean against, or be affixed or fastened at any time to a building or to any pole, sign, tree, lamppost, parking meter, mailbox, traffic signal, hydrant, bench, bus shelter, newsstand, waste receptacle, or traffic barrier located in the public right-of-way.

(l) Vending carts shall not be left unattended on the public right-of-way at any time.

(Added by Ord. 19-1415, adopted 8-27-19)

In addition to the general operating requirements set forth in Section 6544.9 of this part, stationary sidewalk vendors shall comply with the following operating requirements and prohibitions, and each of these operating requirements and prohibitions shall constitute conditions of any sidewalk vending permit for a stationary sidewalk vendor.

(a) Stationary sidewalk vendors are prohibited from operating or establishing in any residential zone of the City, including Single-Family Residential (R-1) Zone – and each of its sub-zones, Two-Family Residential (R-2) Zone, Multiple-Family Residential (R-3) Zone, and Multiple-Family Residential (R-3-O) Zone.

(b) Stationary sidewalk vendors shall remove any vending cart used in the vending operation from the sidewalk each day at the close of business.

(c) Stationary sidewalk vendors shall maintain a separation of at least 25 feet from any other stationary sidewalk vendor so as to allow for queuing and to prevent sidewalk congestion.

(d) Stationary sidewalk vendors shall not cause, allow, or suffer the placement of tables, chairs, fences, shade structures, umbrellas, other furniture, rugs, towels, fabric of any kind upon the sidewalk in conjunction with the vending operation (whether for the display of goods or any other reason).

(e) Stationary sidewalk vendors shall not cause, allow, or suffer the erection or placement of any signs upon the sidewalk.

(f) Stationary sidewalk vendors shall not attach or use any water lines, electrical lines, or gas lines during the vending operation.

(g) No vending cart may exceed an overall height of five feet and width/length of five feet and may not include attachments such as balloons, streamers, ribbons, pinwheels, flags, and other visual marketing aids.

(Added by Ord. 19-1415, adopted 8-27-19)

In addition to the general operating requirements set forth in Section 6544.9 of this part, sidewalk vendors shall comply with the following operating requirements and prohibitions, and each of these operating requirements and prohibitions shall constitute conditions of any sidewalk vending permit for a sidewalk vendor within a park.

(a) Stationary sidewalk vendors are prohibited from operating within any portion of a City park for which the City has signed an agreement for concessions that exclusively permits the sale of merchandise or food by the concessionaire.

(b) Stationary sidewalk vendors operating within a City park shall comply with all operating requirements and prohibitions set forth in Section 6544.10 of this part.

(c) Sidewalk vendors shall not vend in the following locations within a park:

(1) Within 50 feet of any field, court, or pitch that is primarily designed for use in a sporting activity (including, but not limited to, baseball field, softball field, basketball court, tennis court, soccer pitch, volleyball court, and handball court), while said area is in use;

(2) Within 50 feet of any playground, recreational water features, or exercise area, while said area is in use;

(3) Within 50 feet of any restroom facilities.

(d) Notwithstanding Section 6544.9(c)(14), sidewalk vendors of merchandise may conduct sidewalk vending on unpaved portions of a park, so long as the vendor adheres to all other sidewalk vendor operating requirements and park regulations. However, sidewalk vendors of food may not conduct sidewalk vending on unpaved portions of a park.

(Added by Ord. 19-1415, adopted 8-27-19)

(a) A violation of this part by a sidewalk vendor who has a current and valid sidewalk vending permit issued by the City pursuant to this part is punishable only by an administrative citation pursuant to Chapter 4 of Article I of this Code, in the following amount:

(1) One hundred dollars for a first violation.

(2) Two hundred dollars for a second violation within one year of the first violation.

(3) Five hundred dollars for each additional violation within one year of the first violation.

(4) The City may rescind a permit issued to a sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations, in accordance with the provisions of Section 6544.13.

(b) An person engaged in sidewalk vending without a current and valid sidewalk vending permit issued pursuant to this part is punishable only by an administrative citation pursuant to Chapter 4 of Article I of this Code, in the following amounts, in lieu of the amounts set forth in subsection (a):

(1) Two hundred fifty dollars for a first violation.

(2) Five hundred dollars for a second violation within one year of the first violation.

(3) One thousand dollars for each additional violation within one year of the first violation.

(4) Upon proof of a valid permit issued by the City pursuant to this part, the administrative citations set forth in this paragraph shall be reduced to the amounts set forth in subsection (a).

(c) A violation of this part shall not be punishable as an infraction or misdemeanor and a person alleged to have violated any provision of this part shall not be subject to arrest except when otherwise permitted under law. Further, failure to pay an administrative citation issued pursuant to this part 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.

(d) Any administrative citation issued pursuant to this part shall be accompanied with notice of and instruction regarding the citee's right to request an ability-to-pay determination. When assessing administrative citations pursuant to this part, the administrative hearing officer shall take into consideration the person's ability to pay the fine. 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.

(e) If the person meets the criteria described in subdivision (a) or (b) of California Government Code Section 68632, the City shall accept, in full satisfaction, 20% of an administrative citation imposed pursuant to this part.

(Added by Ord. 19-1415, adopted 8-27-19)

The Director shall summarily rescind a sidewalk vendor permit issued to a sidewalk vendor for the term of the permit upon a fourth or subsequent violation of this part within one year of the first violation in accordance with the procedures outlined in this section.

(a) Upon determining that a holder of a sidewalk vendor permit has committed a fourth or subsequent violation of this part within one year of the first violation, the Director shall serve a written Order of Rescission upon the permittee stating the grounds for rescission and the permittee's right to appeal the Order of Rescission. The Order shall also set forth the effective date of the rescission and the duration of the rescission. The Order of Rescission shall be served upon the permittee at the address listed on the sidewalk vendor permit application via first class mail. Failure of the permittee to receive an Order of Rescission that was served in accordance with this section shall not invalidate the Order of Rescission.

(Added by Ord. 19-1415, adopted 8-27-19)

(a) Ability to Pay Determination. Any person issued an administrative citation pursuant to this part may request a determination on the person's ability to pay the administrative fine. The person may request an ability-to-pay determination at any time prior to payment of the fine, including when a fine is delinquent or has been referred to a comprehensive collection program.

(1) The Director or hearing officer shall reduce the fine to 20% of the total if the citee meets either of the following criteria:

(i) If the citee is receiving public benefits under Government Code Section 68632(a); or

(ii) If the citee has a monthly income which is 125% or less of the current poverty guidelines updated periodically in the Federal Register by the United States Department of Health and Human Services.

(b) Appeal of Administrative Citation. Any person issued an administrative citation pursuant to this part shall have the right to appeal the issuance of the administrative citation in accordance with and the time limits set forth in the provisions of Chapter 4 of Article I of this Code.

(1) Notwithstanding the provisions of Chapter 4 of Article I of this Code, upon the submission of proof of a valid permit issued by the City pursuant to this part, any administrative fine imposed upon a sidewalk vendor who did not have a valid permit at the time the administrative citation was issued shall be reduced in accordance with Section 6544.12(b)(4) of this part.

(c) Appeal of Denial or Rescission of Sidewalk Vending Permit.

(1) Any person who has been denied a sidewalk vending permit or who has had a sidewalk vending permit rescinded by the Director pursuant to the provisions of this part may appeal such determination to the City Manager, or designee thereof, by filing a request for an appeal with the City Clerk, and tendering a filing and processing fee as set by resolution of the City Council, within 10 calendar days of service of the notice of such denial or Order of Rescission. The request for an appeal shall contain, at a minimum, the following:

(i) The name, current mailing address, and telephone number of the appellant;

(ii) The date of denial or rescission by the Director of Public Works;

(iii) A statement as to all grounds for appeal in sufficient detail to enable the City Manager, or designee thereof, to understand the nature of the controversy; and

(iv) The signature of the appellant under penalty of perjury as to the contents of the request for appeal.

(2) Appeal hearings shall be conducted before the City Manager, or designee thereof, in the same manner as set forth under the provisions of Section 6301(f)(2) and (f)(3) of this Code. The determination of the City Manager, or designee thereof, is final and binding.

(Added by Ord. 19-1415, adopted 8-27-19)