Fresno Municipal Code Art. 5 Emergency Services Ordinance

This article shall be known as the Emergency Services Ordinance of the City of Fresno. Its purpose is to implement and complement the California Emergency Services Act (Chapter 7, Division 1, Title 2 of the Government Code, Section 8550, et seq.), and shall be liberally construed to effect the purposes thereof.

(Rep. and Added Ord. 68-56, 1968; Rep. and Added Ord. 72-157, 1972; Am. Ord. 2005-9, § 1, eff. 3-19-05; Am. Ord. 2007-55, § 4, eff. 9-4-07).

(a) Civil Defense or Emergency Services means the preparation for and carrying out of all emergency functions, other than functions for which military forces are primarily responsible, to prevent, minimize, and repair injury and damage resulting from disasters or emergencies.

(b) Disaster or Emergency shall mean any extraordinary air pollution, fire, flood, riot, storm, epidemic, earthquake, sudden and severe energy shortage or the threat thereof, or any actual or threatened enemy attack or sabotage, which causes or threatens to cause long term health issues, or loss of life or property and in which occurrences the responsibility devolves upon the regularly constituted authorities for the maintenance of public peace and order and the preservation of life and property. It shall not include any conditions resulting from a labor controversy. When proclaimed, as provided by this article, a disaster or emergency shall also mean "local emergency," within the meaning of the California Emergency Services Act.

(Rep. and Added Ord. 68-56, 1968; Rep. and Added Ord. 72-157, 1972; Am. Ord. 2005-9, § 1, eff. 3-19-05; Am. Ord. 2007-55, § 4, eff. 9-4-07).

(a) The Mayor, or in his or her absence, the Council President, or in the absence of both the Mayor and Council President, the City Manager may request the Council of the City of Fresno to proclaim the existence or threatened existence of a disaster or emergency and the termination thereof, if said Council is in session, or to issue such proclamation if said Council is not in session, subject to confirmation by said Council at the earliest practicable time;

(b) The Mayor, or in his or her absence, the Council President, or in the absence of both the Mayor and Council President, the City Manager may request the Governor to proclaim a state of emergency in the City or in an area in and around the City, when in the opinion of the Director the prevailing conditions are such that they are or are likely to become beyond the control of the services, personnel, equipment, and facilities of the City or the City in combination with any other local agency available to meet the emergency.

(Added Ord. 2005-9, § 1, eff. 3-19-05; Am. Ord. 2007-55, § 4, eff. 9-4-07).

The Council of the City of Fresno shall serve as the Emergency Services Council for the City of Fresno. The Emergency Services Council shall be a disaster council as described in Article 10, Section 8610 of the Government Code, upon proper certification. The Council shall provide for continuity of government to ensure the proper performance of its duties as the Emergency Services Council and may reconstruct itself pursuant to Government Code Section 8643. Vacancies filled in such manner shall be for the sole purpose of serving as Emergency Service Council and only until vacancies are filled as required by the Charter.

(Rep. and Added Ord. 68-56, 1968; Rep. and Added Ord. 72-157, 1972; Am. Ord. 2005-9, § 1, eff. 3-19-05; Am. Ord. 2007-55, § 4, eff. 9-4-07).

The City of Fresno Office of Emergency Services is hereby created and shall consist of the following:

(a) The City Manager, who shall be Director of Emergency Services pursuant to Section 2-506 of this article. If the City Manager is unavailable, as defined herein, an Assistant City Manager shall assume the powers and duties of the City Manager as Director of Emergency Services.

(b) Fire Chief, who shall be assistant Director of Emergency Services. In addition, Assistant directors, designated by the City Manager in successive order, who shall be Assistant City Managers and/or City Department Directors. In the absence of, or at the direction of, the Director and Assistant Director, the first available succeeding Assistant Director shall act on all matters within the purview of this article.

(c) The City of Fresno Emergency Preparedness Officer shall be the Emergency Services Coordinator, who shall have the responsibility to:

(1) Coordinate the City's Emergency Services Program in accordance with applicable State and Federal guidelines;

(2) Coordinate the development of the City's Emergency Operations Plan;

(3) Provide advisory assistance to responsible City departments concerning assigned operations during emergency situations; and

(4) Interact with the news media, the medical community, other public agencies, and the general public to promote disaster preparedness and mitigation activities.

(d) Such directors, heads, and chiefs of operating City departments, divisions, sections, or services as may be directed or required to render services connected with Emergency Services.

(e) Such representatives of civic, business, labor, veterans, professional, or other organizations having an official group or organization Emergency Service responsibility as may be appointed by the Director with the advice and consent or ratification of the Emergency Services Council.

(f) All officers and employees of this City, together with those volunteer forces enrolled to aid them during a disaster or emergency, and all groups, organizations, and persons, pressed into service under the provisions of this article, who by agreement or operation of law may be charged with duties incident to the protection of life and property in this City during a disaster or emergency.

(Rep. and Added Ord. 68-56, 1968; Rep. and Added Ord. 72-157, 1972; Am. Ord. 87-8, § 1, eff. 2-13-87; Am. Ord. 2005-9, § 1, eff. 3-19-05; Am. Ord. 2007-55, § 4, eff. 9-4-07).

In the event of the proclamation of a disaster or emergency as herein provided or by the proclamation of a state of emergency by the Governor or the State Director of Emergency Services, the Director, or City Council by majority vote (except for subsections (a), (b), and (o) below), is hereby empowered to:

(a) Control and direct the effort and personnel of the Emergency Services Organization of this City for the accomplishment of the purposes of this article and to make and issue rules and regulations on matters reasonably related to the protection of life and property of the public;

(b) Direct coordination and cooperation between divisions, services, and staff of the Emergency Services Organization of this City, and to resolve questions of authority and responsibility that may arise between them;

(c) Request, contract for, receive, and implement State and Federal aid of all types, including measures available under California Emergency Services Act relating to disaster preparedness and relief;

(d) Order the opening or closing of any building or premises owned or controlled by the City, as in his discretion he may determine to be in the public interest;

(e) The powers granted under subsection (d) above may be so exercised as to any public building or premises when the agency in control thereof requests or allows such action;

(f) Establish at some central, safe, and enclosed place in this City, a room or rooms, which shall be in use in times of imminent public danger as the center from which the Emergency Services Organization shall be directed and coordinated. The Director shall establish one or more alternate control centers for use in case the primary control center is damaged, destroyed, or otherwise unusable;

(g) Designate, and have marked, as necessary, highway evacuation routes for use in connection with regional and state disaster plans;

(h) Represent the Emergency Services Organization of this City in all dealings with public or private agencies pertaining to disaster or emergency services.

(i) Make and issue rules, regulations, and proclamations on matters reasonably related to the protection of life and property as affected by such emergency; provided, however, proclamations must be confirmed at the earliest practicable time by the Emergency Services Council;

(j) Obtain vital supplies, equipment, and such other properties found lacking and needed for the protection of life and property of the people, and bind the City for the fair value thereof, and if required immediately, to commandeer the same for public use. Any expenditures made in such connection with emergency service activities, including mutual aid activities, shall be deemed conclusively to be for the direct protection and benefit of the inhabitants and property of the City;

(k) Command the aid of as many citizens of this community as he or she thinks necessary in the execution of his duties; such persons shall be entitled to all privileges, benefits, and immunities as are provided by state law for registered emergency service worker volunteers;

(l) Require emergency service of any City officer or employee and require any City officer or employee to remain available on a standby basis, for regular and emergency service, but without compensation for remaining so available, notwithstanding any salary resolution or other form of ordinance to the contrary;

(m) Order a general curfew applicable to such geographical areas of the City or to the City as a whole, as he or she deems advisable and applicable during such hours of the day or night as he or she deems necessary in the interest of the public safety and welfare, and reasonably calculated to avoid damage or injuries to persons, property, or the public peace; the curfew is defined as, and shall be when so declared, a prohibition against any person or persons being or remaining in any alley, street, highway, public property or vacant premises within the curfew area;

(n) Make in the interest of public safety and welfare any or all of the following orders:

(1) Order the closing of all retail liquor stores;

(2) Order the closing of all beer taverns;

(3) Order the closing of all private clubs or portions thereof wherein the consumption of intoxicating liquor or beer is permitted;

(4) Order the discontinuance of the sale of beer and liquor;

(5) Order the discontinuance of selling, distributing, or giving away gasoline or other flammable liquid, flammable or combustible products in any container, other than a gasoline tank properly affixed to a motor vehicle;

(6) Order the closing of gasoline stations and other establishments, the chief activity of which is the sale, distribution, or giving away of firearms, ammunition, or explosives of any character whatsoever;

(7) Order the discontinuance of selling, distributing, dispensing, or giving away of firearms, ammunition or explosive of any character whatsoever;

(8) Order the closing of any and all establishments or portions thereof, the chief activity of which is the sale, distribution, dispensing, or giving away of firearms or ammunition;

(9) Order the closing of any and all establishments and premises where crowds gather or tend to gather, including, but not limited to, theaters, stadiums, dance halls, gymnasiums, amusement areas, etc.;

(10) Issue other orders relating to the closing of businesses or areas or portions thereof or restricting the activity of similar establishments, which might be special targets of, or supply depots for, unruly persons; and

(11) Order a price or rate freeze on consumer goods or lodging facilities which may have limited availability as a result of an emergency or disaster situation; and

(o) Execute all ordinary powers as City Manager, all of the special powers conferred by this article or by resolution adopted pursuant thereto, all powers conferred by the Charter, any statute, ordinance, or agreement approved by the Council for the City of Fresno, or by any other lawful authority to exercise complete authority over the city and to exercise all police power vested in the city by the Charter.

(Rep. and Added Ord. 68-56, 1968; Rep. and Added Ord. 72-157, 1972; Am. Ord. 87-8, § 2, eff. 2-13-87; Am. Ord. 2005-9, § 1, eff. 3-19-05; Am. Ord. 2007-55, § 4, eff. 9-4-07; Am. Ord. 2020-037, § 1, eff. 9-17-20).

The functions, powers, and duties of the Fresno Emergency Services Organization shall be distributed among such departments, divisions, services, and special staff as the Director may prescribe subject to the approval of the Emergency Services Council by resolution. Insofar as possible, the form of organization, titles, and terminology shall conform to recommendations of the federal government and the Emergency Services agency of the State of California.

(Rep. and Added Ord. 68-56, 1968; Rep. and Added Ord. 72-157, 1972; Am. Ord. 2005-9, § 1, eff. 3-19-05; Am. Ord. 2007-55, § 4, eff. 9-4-07).

The provisions of every law of this city and every administrative order made pursuant thereto, requiring any illumination (lighting) to be maintained in conflict with this article or with any rule or regulation made pursuant to this article, shall be deemed suspended during the period when any civil defense or emergency services warning signal is in effect requiring the blacking out or darkening of the city or any part thereof.

(Rep. and Added Ord. 68-56, 1968; Rep. and Added Ord. 72-157, 1972; Am. Ord. 2005-9, § 1, eff. 3-19-05; Am. Ord. 2007-55, § 4, eff. 9-4-07).

All persons, other than officers and employees of the city, volunteering services pursuant to provisions of this article, shall serve without compensation from the city. While engaged in such services, they shall have and enjoy the same immunities as officers and employees of the city performing similar duties. Volunteer registration shall be in compliance with current State Disaster Service Worker Program guidelines.

(Rep. and Added Ord. 68-56, 1968; based on former Sec. 2-2708; Rep. and Added Ord. 72-157, 1972; Am. Ord. 2005-9, § 1, eff. 3-19-05; Added Ord. 2007-55, § 4, eff. 9-4-07).

A proclamation made pursuant to this article shall constitute a calamity under Penal Code Section 409.5 and be authority for the Chief of Police to take the steps therein provided and authorized and pursuant to authority of this article.

(Rep. and Added Ord. 68-56, 1968; Rep. and Added Ord. 72-157, 1972; Am. Ord. 2005-9, § 1, eff. 3-19-05; Added Ord. 2007-55, § 4, eff. 9-4-07).

The following general provisions apply to proclamations, rules and orders made pursuant to the foregoing sections of this article.

(a) Any proclamation or order promulgated pursuant to the authority conferred by this article shall be in force and effect from the time of promulgation and until amended or repealed by the Director, or Assistant Director, or until repealed by the Council.

(b) Any conditions or activities conducted or maintained contrary to the proclamation or orders are public nuisances.

(c) All proclamations and orders, other than the closing of public ways under Section 2-510 shall be in writing and shall be available for public inspection at the place and during the hours fixed by the Director.

(d) Persons going to or coming from or attending to any public utility, health or disaster or emergency service, or duly authorized by any news service, newspaper, radio, television, or network to gather or report the news, shall not be subject to any curfew ordered under this article.

(e) This article shall not be construed so as to conflict with any state or federal statute, regulation, or order relating to conditions in the city during the effectiveness of said proclamations or orders.

(Rep. and Added Ord. 68-56, 1968; Rep. and Added Ord. 72-157, 1972; Am. Ord. 2005-9, § 1, eff. 3-19-05; Am. Ord. 2007-55, § 4, eff. 9-4-07).

It shall be a misdemeanor for any person during a disaster/or emergency:

(a) Willfully to obstruct, hinder, or delay any member of the emergency services organization in the enforcement of any lawful rule, proclamation, or regulation issued pursuant to this article, or in the performance of any duty imposed upon him by virtue of this article;

(b) To do any act forbidden by any lawful rules or regulations issued or curfew ordered pursuant to this article, or,

(c) To wear, carry, or display, without authority, any means of identification specified by the emergency services agency of the State of California or the City of Fresno.

(Rep. and Added Ord. 68-56, 1968; Rep. and Added Ord. 72-157, 1972; Am. Ord. 2005-9, § 1, eff. 3-19-05; Am. Ord. 2007-55, § 4, eff. 9-4-07).

(a) The city hereby finds that during a state of emergency or local emergency, including, but not limited to, an earthquake, flood, fire, riot, storm, drought, plant or animal infestation, disease, or other natural or manmade disaster, some merchants have taken unfair advantage of consumers by greatly increasing prices for essential consumer goods and services. While the pricing of consumer goods and services is generally best left to the marketplace under ordinary conditions, when a declared state of emergency or local emergency results in abnormal disruptions of the market, the public interest requires that excessive and unjustified increases in the prices of essential consumer goods and services be prohibited. It is the intent of the city in enacting this act to protect residents from excessive and unjustified increases in the prices charged during or shortly after a declared state of emergency or local emergency for goods and services that are vital and necessary for the health, safety, and welfare of consumers. Further, it is the intent of the city that this section be liberally construed so that its beneficial purposes may be served.

(b) Upon the proclamation of a state of emergency declared by the President of the United States or the Governor, or upon the declaration of a local emergency by the city, and for a period of 30 days following that proclamation or declaration, it is unlawful for a person, contractor, business, or other entity to sell or offer to sell any consumer food items or goods, goods or services used for emergency cleanup, emergency supplies, medical supplies, or building materials, for a price of more than 10 percent greater than the price charged by that person for those goods or services immediately prior to the proclamation or declaration of emergency. However, a greater price increase is not unlawful if that person can prove that the increase in price was directly attributable to additional costs imposed on it by the supplier of the goods, or directly attributable to additional costs for labor or materials used to provide the services, during the state of emergency or local emergency, and the price is no more than 10 percent greater than the total of the cost to the seller plus the markup customarily applied by the seller for that good or service in the usual course of business immediately prior to the onset of the state of emergency or local emergency.

(c) The prohibitions of this section shall be in effect at all times during which there is a declared emergency in the City, if deemed necessary to protect the lives, property, or welfare of the residents.

(d) A violation of this section is a misdemeanor punishable by imprisonment in a county jail for a period not exceeding one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment. Alternatively, an administrative citation may be imposed pursuant to Section 1-308 of this code with an administrative fine of up to $10,000 per violation.

(e) A violation of this section shall constitute an unlawful business practice and an act of unfair competition within the meaning of Section 17200 of the Business and Professions Code. The remedies and penalties provided by this section are cumulative to each other, the remedies under Section 17200 of the Business and Professions Code, and the remedies or penalties available under all other laws of this state.

(f) For the purposes of this section, the following terms have the following meanings:

(1) "State of emergency" means a natural or manmade emergency resulting from an earthquake, flood, fire, riot, storm, drought, plant or animal infestation, disease, or other natural or manmade disaster for which a state of emergency has been declared by the President of the United States or the Governor.

(2) "Local emergency" means a natural or manmade emergency resulting from an earthquake, flood, fire, riot, storm, drought, plant or animal infestation, disease, or other natural or manmade disaster for which a local emergency has been declared.

(3) "Consumer food item" means any article that is used or intended for use for food, drink, confection, or condiment by a person or animal.

(4) "Emergency supplies" includes, but is not limited to, water, flashlights, radios, batteries, candles, blankets, soaps, diapers, temporary shelters, tape, toiletries, plywood, nails, and hammers.

(5) "Medical supplies" includes, but is not limited to, prescription and nonprescription medications, bandages, gauze, isopropyl alcohol, and antibacterial products.

(6) "Building materials" means lumber, construction tools, windows, and anything else used in the building or rebuilding of property.

(7) "Goods" has the same meaning as defined in subdivision (c) of Section 1689.5 of the Civil Code.

(g) A business offering an item for sale at a reduced price immediately prior to the proclamation or declaration of the emergency may use the price at which it usually sells the item to calculate the price pursuant to subdivision (b).

(h) All businesses selling the goods or services outlined in this Section shall post notices provided by the city at front entrances informing the public of the provisions of this Section. Failure to post such notices shall be subject to administrative citation.

(Added Ord. 2020-009, § 1, eff. 3-16-20; Amd. Ord. 2020-015, § 1, eff. 4-23-20)

For so long as there is a City State of Emergency in effect due to the COVID-19 pandemic, the following shall apply:

(a) The City shall not discontinue utility and sanitary service to any customer for reason of nonpayment, and no late fees or interest shall accrue. Any customer whose utility service has been shut off or terminated for nonpayment shall have service restored for the duration of the declared emergency, without any reconnection charges.

(b) Non-essential City services may be suspended; responding to requests under the California Public Records Act may be delayed during and following the emergency.

(c) No refunds shall be owed or paid pursuant to the Money Back Guarantee, Fresno Municipal Code 12-2301, et seq., as a result of extended processing times related to the COVID-19 pandemic.

(d) Senior Hot Meals programs shall continue, with appropriate health and safety precautions in place.

(e) City busses shall be cleaned and disinfected at least daily. The City Transportation Department shall have full authority to modify or add bus routes and schedules to accommodate the public need and welfare during the emergency.

(f) As of March 4, 2020, there shall be instituted a price and rate freeze on consumer goods and lodging facilities which may have limited availability as a result of an emergency or disaster situation. No person or business shall charge a price greater than 10% above prices charged for such goods as of March 4, 2020. This provision shall be enforced via the price gouging emergency ordinance approved by Council on March 16, 2020.

(g) Rent Deferral, Eviction Moratorium, and Foreclosures.

(1) To the extent allowed by State law, no residential tenant, including, without limitation, a mobile home tenant, in the City shall be evicted for nonpayment of rent during the state of emergency caused by the COVID-19 outbreak.

(2) To the extent allowed by State law, commercial landlords in the City are hereby prohibited from evicting commercial tenants for nonpayment of rent during the state of emergency caused by COVID-19, and for a period of 90 days after the declaration of local emergency is terminated.

(3) A tenant, whether residential or commercial, must notify their landlord in writing they cannot pay rent due to a COVID-19 related impact. Within ten days of this notice, the tenant must provide documentation to support the claim that they cannot pay rent. For purposes of this section, "in writing" includes e-mail or text communication to the landlord. Any documentation provided to support the claim is deemed to be adequate for this purpose in accordance with state law. Any medical or financial information provided to the landlord shall be held in confidence and used only for purposes of evaluating the tenant's claim.

(4) Tenants will have up to six months after the termination of the emergency declaration to repay any back-due rent. No interest, late fees, or other penalties shall accrue or be owed as a result of rent deferrals pursuant to this Section.

(5) This eviction moratorium shall be in effect continuously for so long as the City's declaration of local emergency is in effect, and for commercial tenants, for a period of 90 days following termination of the declaration of local emergency.

(6) A tenant may use this order as a legal defense in any action for unlawful detainer.

(7) Residents and businesses should not face foreclosure as a result of COVID-19. Lenders are encouraged to provide a forbearance agreement for up to six months for borrowers impacted by COVID-19, without impacting the borrower's credit. The city will follow all laws and orders of the State with respect to foreclosure protection.

(h) City staff shall apply for all available state and federal funding related to the COVID-19 emergency.

(i) The City Manager, or designee, is directed to identify funds and create a COVID-19 Emergency Response Fund to support City actions that are appropriate and necessary to address the impacts and exigencies arising from the COVID-19 pandemic. The City Manager, or designee, shall report this information to the Council at the next Council meeting and thereafter shall report to the Council as promptly and as often as is reasonably possible regarding the expenditures made from the COVID-19 Emergency Response Fund. At a minimum, any fines collected as a result of price gouging, non-essential businesses remaining open, or other matters related to the COVID-19 pandemic shall be allocated to the COVID-19 Emergency Response Fund.

(j) Reserved.

(k) Bars and taverns as defined in City of Fresno Emergency Order 2020-01 (establishments with California Alcoholic Beverage Control (ABC) license types 40, 42, 48, 51, 57, 60, and 61) may provide curbside or delivery of alcoholic beverages so long as accompanied by food, if permitted by their CUP and State law, including, without limitation any ABC Notice of Regulatory Relief.

(l) Reserved.

(m) Upon confirmation of a positive COVID-19 case among an employee or customer of a business, the employer shall notify all employees of the possible exposure within 24 hours. Such notification shall maintain confidentiality of the individuals involved or affected, in compliance with Americans with Disability Act and privacy laws. An employer shall follow all local, state and federal public health requirements and recommendations, including sanitizing, and cooperating with contact tracing protocols. No cause of action shall exist against a business for COVID-19 infections alleged to stem from the business, so long as the business is in full compliance with State and local mandatory safety measures related to COVID-19.

(n) Any business ordered to close that remains open in violation of an Emergency Order of the city, shall alternatively be punishable by administrative citation. The city shall provide a warning, and thereafter noncompliance shall be subject to a fine of $1,000 for the first offense, $5,000 for the second offense, and $10,000 for the third or subsequent offense.

(o) If any provision of this Ordinance or its application to any person or circumstance is held to be invalid, then the reminder of the Ordinance, including the application of such part or provision to other persons or circumstances, shall not be affected and shall continue in full force and effect. To this end, the provisions of this Ordinance are severable.

(p) This Ordinance shall be immediately translated into Spanish, Hmong, and Punjabi, and accommodations made for all disabled persons to read its contents; it shall also be distributed to all local media and made prominently available on the City's website.

(Added Ord. 2020-010, § 1, eff. 3-19-20; Am. Ord. 2020-012, § 1, eff. 3-25-20; Am. Ord. 2020-016, § 1, eff. 4-23-20; Am. Ord. 2020-024, § 1, eff. 7-16-20; Am. Ord. 2020-036, §§ 2, 3, eff. 9-17-20; Am. Ord. 2021-030, § 1, eff. 6-17-21).

Notwithstanding the provisions of FMC 15-2744, for so long as restaurants are prohibited from operating at full capacity due to an emergency order related to the COVID-19 pandemic, the following shall apply:

(a) Outdoor dining is permitted in common areas of shopping centers and parking lots, with permission of the property owner, and on City property, with permission of the City Manager. Outdoor dining may include consumption of alcohol so long as it is combined with consumption of food, all in compliance with California Alcoholic Beverage Control requirements.

(b) Proper social distancing shall be maintained with dining areas demarcated with tape or barriers. Excess seating shall be removed when feasible, or blocked off if the seating or tables are permanently affixed. For parking lots, every other parking stall may be used, and those stalls between stalls used for tables shall remain vacant, but no disabled person parking stalls may be used. Businesses shall also follow any additional State and County requirements in effect at the time.

(c) All employees must wear masks and wash hands frequently.

(d) This section is subject to further regulations issued by the City Manager, with approval by the Police Chief and City Attorney.

(e) Facilities that establish temporary outdoor dining facilities pursuant to the requirements of this ordinance, shall not be in violation of FMC sections 15-2744, 15-2403-B, 15-2407, 15-2408, 15-2409, 15-2411, or 15-2414 until this ordinance expires, is repealed, or is otherwise rendered ineffective. Temporary outdoor dining facilities established pursuant to this ordinance shall not be deemed a nuisance under FMC Section 15-6304, and shall not be subject to enforcement pursuant to Chapter 15, Article 63 of the Fresno Municipal Code until this ordinance expires, is repealed, or is otherwise rendered ineffective.

(f) Facilities that establish temporary outdoor dining facilities pursuant to the requirements of this ordinance, shall be permitted to provide limited outdoor entertainment, which does not disrupt neighboring businesses or residences, in accordance with the following limitations:

(1) A facility providing outdoor entertainment shall not increase capacity beyond the facility's normal seating capacity.

(2) Entertainment may only be provided on Thursdays, Fridays, Saturdays, Sundays, and holidays.

(3) Live music shall be limited to a maximum two-piece band.

(4) Entertainment shall comply with the music standards as set forth in FMC section 15-2744.

(g) This section shall expire and be repealed one year from the effective date unless extended by the City Council.

(Added Ord. 2020-020, § 1, eff. 5-21-20; Am. Ord. 2020-043, § 1, eff. 9-24-20).

(a) Definitions. For purposes of this section, the following definitions apply:

(1) "City" means the City of Fresno.

(2) "Delivery Fee" means a fee charged by a Third-party Food Delivery Service for providing a Retail Food Establishment with a service that delivers food and beverages from such establishments to customers. The term does not include any other fee or cost that may be charged by a Third-party Food Delivery Service to a Retail Food Establishment, such as fees for listing or advertising the Retail Food Establishment on the Third-party Food Delivery Service platform or fees related to processing the online order, including, but not limited to, service fees, fees for facilitating Online Orders for pickup, and credit card processing fees.

(3) "Online Order" means an order placed by a customer through or with the assistance of a platform provided by a Third-Party Food Delivery Service, including a telephone order, for delivery or pick-up within the City.

(4) "Purchase Price" means the price, as listed on the menu, for the items contained in an Online Order, minus any applicable coupon or promotional discount provided to the customer by the Retail Food Establishment through the Third-Party Food Delivery Service. This definition does not include taxes, gratuities, and any other fees or costs that may make up the total amount charged to the customer or an Online Order.

(5) "Retail Food Establishment" means a restaurant, delicatessen, bakery, coffee shop, or other eat-in or carry-out service of processed or prepared raw and ready-to-eat food or beverages.

(6) "Third-party Food Delivery Service" means any website, mobile application, or other internet service that offers or arranges for the sale of food and beverages prepared by, and the delivery or pick-up of food and beverages from, no fewer than 20 Retail Food Establishments located in the City that are each owned and operated by different persons.

(b) Fee limits. The following limits shall apply any time Retail Food Establishments are restricted by law from allowing indoor dining, and for a period of 90 days after Retail Food Establishments are allowed to reopen at 50% or greater indoor customer capacity:

(1) It shall be unlawful for a Third-party Food Delivery Service to charge a Retail Food Establishment a Delivery Fee that totals more than 15 percent of the Purchase Price of each Online Order.

(2) It shall be unlawful for a Third-Party Food Delivery Service to charge a Retail Food Establishment any amount designated as a Delivery Fee for an Online Order that does not involve the delivery of food or beverages.

(3) It shall be unlawful for a Third-party Food Delivery Service to charge a Retail Food Establishment any combination of fees, commissions, or costs for the Retail Food Establishment's use of the Third-party Food Delivery Service that is greater than 5 percent of the Purchase Price of each Online Order. Fees, commissions, or costs do not include Delivery Fee.

(4) It shall be unlawful for a Third-party Food Delivery Service to charge a Retail Food Establishment any fee, commission, or cost other than as permitted in Subsections 1 through 3, above.

(5) It shall be unlawful for a Third-party Food Delivery Service to charge a customer any Purchase Price for a food or beverage item that is higher than the price set by the Retail Food Establishment without the approval of the Retail Food Establishment.

(6) It shall be unlawful for a Third-party Food Delivery service to retain any portion of amounts designated as a tip or gratuity. Any tip or gratuity shall be paid by the Third-party Delivery Service, in its entirety, to the person delivering the food or beverages.

(c) Penalties and Enforcement.

(1) A violation of this section is a misdemeanor punishable by imprisonment for a period not exceeding one year, or by a fine of not more than $1,000, or by both fine and imprisonment. Alternatively, an administrative citation may be imposed pursuant to Section 1-308 of this code with an administrative fine of up to $10,000 per violation.

(2) A violation of this section shall constitute an unlawful business practice and an act of unfair competition within the meaning of Section 17200 of the Business and Professions Code. The remedies and penalties provided by this section are cumulative to each other, the remedies under Section 17200 of the Business and Professions code, and the remedies or penalties available under all other laws of this state.

(Added Ord. 2020-036, § 1, eff. 9-17-20).