Gustine Municipal Code Ch. 11 Sidewalk Vending

The city finds 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 chapter 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.

(Ord. No. 510, § 2, 5-4-2021)

For purposes of this chapter, the following definitions apply:

Certified farmers' market means 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.

City means the City of Gustine.

Park means a public park owned by the city.

Roaming sidewalk vendor or vending means a sidewalk vendor who moves from place to place and stops only to complete a transaction.

Sidewalk vendor or vending means a person who sells, offers to sell, operates, engages in, or carries on a food or merchandise vending business 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.

Stationary sidewalk vendor or vending means a sidewalk vendor who vends from a fixed location.

Swap meet means 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 event permit means limited term permit which may authorize the following temporary activities within the specified time limits, but in no event for more than 12 months per section 4-52-030 (E) of the Gustine Municipal Code.

(Ord. No. 510, § 2, 5-4-2021)

(a) All sidewalk vendors shall obtain a sidewalk vending permit from the city's finance department for a sidewalk vending business license prior to engaging in any sidewalk vending activities. The following information shall be required:

(1) Name, current mailing address, and phone number of the vendor; and

(2) If the vendor is an agent of an individual, company, partnership, or corporation, the name and business address of the principal; and

(3) A description of the merchandise/goods to be offered for sale or exchange, and the days/hours of sales; and

(4) A copy of the California seller's permit with the sales tax number issued by the California Department of Tax and Fee Administration to the vendor; and

(5) A copy of the vendor's social security card with the number; or

A copy of the valid California Driver's license issued to the vendor; or

A copy of the individual taxpayer identification number issued to the vendor; or

A municipal identification number.

a. Any such identification number(s) or license(s) collected shall not be available to the public for inspection and shall remain confidential and not be disclosed except as required to administer the permit or licensure program or comply with a state law or state or federal court order.

(6) If preparing or selling food, a copy of the county health department permit issued to the vendor; and

(7) If the vendor proposes to be a stationary sidewalk vendor, a description or site plan map of the proposed location(s) where vending will take place, showing that the sidewalk location maintains a minimum of 36 inches of accessible route area, in compliance with the Americans with Disabilities Act; and

(8) If the vendor proposes to be a stationary sidewalk vendor, an encroachment permit pursuant to section 4-44-100 of the Gustine Municipal Code; and

(9) A copy of general liability policy naming the city as additional insured in the amount of $1,000,000.

(10) A certification by the vendor that to his or her knowledge and belief, the information contained in the application is true.

(b) Prior to the issuance of a sidewalk vendor permit, the applicant shall cause to be filed with the chief of police or his or her designee a LiveScan background check conducted by the California Department of Justice within the previous six months of the application date. The chief of police shall furnish each applicant with a LiveScan request form for use at any LiveScan vendor location.

(c) At the time the application or renewal application is filed, the application shall pay the permit processing fee established by separate resolution of the city council.

(Ord. No. 510, § 2, 5-4-2021)

(a) Upon acceptance of a properly completed and filed sidewalk vendor permit application and receipt of an acceptable LiveScan report issued by the Department of Justice, the chief of police or his/her designee shall conduct a preliminary investigation to determine compliance with this chapter and shall make such determination within no more than 30 days of acceptance to approve or deny the application. The chief of police or his/her designee shall provide the applicant with written notice of his or her decision to the address indicated in the application.

(b) The chief of police or his/her designee may deny an application for a permit if he or she makes any of the following findings:

(1) The applicant has failed to pay the application permit fee.

(2) The applicant has made one or more material misstatements in the application for a permit.

(3) The applicant does not have a valid social security card or valid California Driver's license; or valid individual taxpayer identification number; or a municipal identification number.

(4) The applicant's vending operation, as described in the application, is inconsistent with the standards, conditions, and requirements of this chapter.

(5) 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 §§ 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.

(6) It is determined that the applicant does not possess all federal, state, and local permits and licenses necessary to engage in the activity in which he or she seeks to engage.

(c) If the application is denied, the reasons for disapproval shall be noted on the application, and the applicant shall be notified that his or her application is denied and that no permit will be issued. Notice shall be mailed to the applicant at the address shown on the application form.

(d) If the chief of police or his/her designee approves the applicant's permit, he or she shall endorse his or her approval on the application and shall, upon payment of the prescribed fee, deliver the permit to the applicant.

(e) Exemptions. A sidewalk vending permit shall not be required for the following activities:

(1) The sale of agriculture products on the site where the product is grown.

(2) Catering for private parties held exclusively on private property and not open to the general public.

(3) Events permitted pursuant to a lawfully issued temporary event permit including, but not limited to, a certified farmers' market, swap meet, street fairs, outdoor concerts, sport league opening day, and business sidewalk sales.

(4) First Amendment protected vending.

(f) Term of permit. A sidewalk vending permit issued pursuant to this chapter shall automatically expire one year from the date issued, unless an earlier expiration date is noted on the permit.

(g) Transferability. A sidewalk vending permit shall not be transferable to any other entity or person and is valid only as to the original applicant for the term stated.

(Ord. No. 510, § 2, 5-4-2021)

(a) Stationary sidewalk vendors shall be prohibited from operating or establishing in any residential zone of the city;

(b) Stationary sidewalk vendors may operate in nonresidential zones of the city, including mixed use zones, provided they meet the following:

(1) The sidewalk vendor is duly licensed and meets all requirements of section 5-11-3; and

(2) The sidewalk vendor can set up their vending operation while still leaving a minimum of 36 inches of accessible path of travel, without obstruction, along the public sidewalk or public pathway; and

(3) If the sidewalk vendor is selling food, the sidewalk vendor shall display a valid health permit issued by the county in a conspicuous location on any food cart; and

(4) Any sidewalk vendor food cart shall possess a current decal sticker posted on the food cart; and

(5) If the sidewalk vendor is selling food, all employees shall possess a current food handler's card, issued by the county; and

(6) Sidewalk vending hours shall be conducted between the hours of 8:00 a.m. and 9:00 p.m. of every day; and

(7) The sidewalk vendor maintains the vending area in a clean, orderly, and sanitary condition; and

(8) The sidewalk vendor location does not block entrances to private buildings, private driveways, parking spaces or building windows; and

(9) No vending shall occur within ten feet of a fire hydrant, fire escape, bus stop, loading zone, handicapped parking space or access ramp, fire station driveway, or police station driveway; and

(10) No tables, chairs, fences, shade structures, other site furniture, or any freestanding signs shall be permitted in conjunction with the vendors vending activities; and

(11) The vendor shall not attach or use any water lines, electrical lines, or gas lines during vending operations; and

(12) Exterior storage or display of refuse, equipment, materials, goods, wares, or merchandise associated with the vendor is prohibited; and

(13) No vending shall occur within the immediate vicinity of a certified farmers' market, a swap meet, or an event held pursuant to a temporary event permit; and

(14) The sidewalk vendor shall not discharge any liquid (e.g., water, grease, oil, etc.) onto or into the city streets, storm drains, catch basins, or sewer facilities. All discharges shall be contained and properly disposed of by the sidewalk vendor; and

(15) No vending shall occur within a corner cutoff area. A corner cutoff area is that area at all intersecting and intercepting streets or highways. The cutoff line shall be in a horizontal plane, making an angle of 45 degrees with the side, front, or rear property line, as the case may be. It shall pass through the points located on both sides and front or rear property lines at a distance of 30 feet from the intersection of such lines at the corner of a street or highway; and

(16) The sidewalk vendor may not operate in the city parks during permitted special events, such as, but not limited to, Festa's, Christmas in the Park, and the Fourth of July Celebration; and

(17) No vending shall occur within 200 feet of a school entrance.

(Ord. No. 510, § 2, 5-4-2021)

(a) Sidewalk vending of food or merchandise by stationary vendors shall be prohibited in any city park with a concession stand operated by a vendor under exclusive contract with the city selling similar food or merchandise or in an area occupied by a certified farmer's market.

(b) Sidewalk vendors may operate in city parks provided they meet the following:

(1) The sidewalk vendor is duly licensed and meets all requirements of section 5-11-3; and

(2) For stationary sidewalk vending, the sidewalk vendor can set up their vending operation while still leaving a minimum of 36 inches of accessible path of travel, without obstruction, along the public sidewalk or public pathway; and

(3) The sidewalk vendor shall cease operations one hour prior to the close of the park; and

(4) The sidewalk vendor maintains the vending area in a clean, orderly, and sanitary condition; and

(5) If the sidewalk vendor is selling food, the sidewalk vendor shall display a valid health permit issued by the county in a conspicuous location on any food cart; and

(6) Any sidewalk vendor food cart shall possess a current decal sticker posted on the food cart; and

(7) The sidewalk vendor location does not block entrances to buildings, driveways, parking spaces, or building windows; and

(8) No vending shall occur within the immediate vicinity of an event held pursuant to a temporary event permit; and

(9) The sidewalk vendor shall not discharge any liquid (e.g., water, grease, oil, etc.) onto or into city streets, storm drains, catch basins, or sewer facilities. All discharges shall be contained and properly disposed of by the sidewalk vendor; and

(10) No vending shall occur within a corner cutoff area. A corner cutoff area is that area at all intersecting and intercepting streets or highways. The cutoff line shall be in a horizontal plane, making an angle of 45 degrees with the side, front, or rear property line, as the case may be. It shall pass through the points located on both sides and front or rear property lines at a distance of 30 feet from the intersection of such lines at the corner of a street or highway.

(11) The sidewalk vendors are restricted to the number of acres in a park which reduces an overconcentration of vendors in one area. One sidewalk vendor per six acres of land is allowed in the city's parks. The following is a list of the current city parks within city limits:

a. Schmidt Park - 25 acres - 4 allowable vendors

b. Henry Miller - 5 acres - 1 allowable vendor

c. Pioneer Park - <1 acres - 1 allowable vendor

d. Borrelli Park - 3 acres - 1 allowable vendor

e. Jamero Park - <1 acre - 1 allowable vendor

f. Any future parks will be based on 1 vendor per 6 acres of land.

(Ord. No. 510, § 2, 5-4-2021)

(a) Roaming sidewalk vendors shall meet the following:

(1) The sidewalk vendor is duly licensed and meets all requirements of section 5-11-3; and

(2) Sidewalk vending hours for residential zones shall be conducted between the hours of 9:00 a.m. and 5:00 p.m.; and

(3) Sidewalk vending hours for nonresidential zones shall be conducted between the hours of 8:00 a.m. and 9:00 p.m. of every day; and

(4) The sidewalk vendor maintains their temporary vending area in a clean, orderly, and sanitary condition; and

(5) The sidewalk vendor does not block entrances to buildings, driveways, parking spaces, or building windows; and

(6) The sidewalk vendor does not conduct sales from a public street.

(7) No vending shall occur within the immediate vicinity of a certified farmers' market, a swap meet, or an event held pursuant to a temporary event permit; and

(8) No vending within 300 feet of the snack shack at Schmidt Park when in operation during any event.

(9) No vending shall occur within a corner cutoff area. A corner cutoff area is that area at all intersecting and intercepting streets or highways. The cutoff line shall be in a horizontal plane, making an angle of 45 degrees with the side, front, or rear property line, as the case may be. It shall pass through the points located on both sides and front or rear property lines at a distance of 30 feet from the intersection of such lines at the corner of a street or highway; and

(10) No vending shall occur within 200 feet of a school entrance.

(Ord. No. 510, § 2, 5-4-2021)

(a) A sidewalk vendor permit issued under this chapter may be suspended or rescinded by the chief of police or his/her designee after four or more violations of this chapter in accordance with section 5-11-10 of this chapter, at their discretion, for any of the following causes:

(1) Fraud or misrepresentation in the course of vending;

(2) Fraud or misrepresentation in the application for the permit;

(3) Vending in a manner that creates a public nuisance or constitutes a danger to the public.

(b) Notice of the suspension or rescission of a sidewalk vendor permit issued under this chapter shall be mailed, postage prepaid, to the holder of the sidewalk vendor permit at his or her last known address.

(c) No person whose street vending permit has been revoked pursuant to this chapter shall be issued a street vending permit for a period of two years from the date revocation becomes final.

(Ord. No. 510, § 2, 5-4-2021)

In the event that any applicant or permittee desires to appeal from any order, rescission, or other ruling of the chief of police or his/her designee made under the provisions of this chapter, such applicant or any other person aggrieved shall have the right to appeal such action or decision to the city manager within 15 days after the notice of the action or decision has been mailed to the person's address as shown on the permit application. An appeal shall be taken by filing with the city clerk's department, a written appeal statement setting forth the grounds for the appeal, along with the city's appeal fee, which shall be established by city council resolution. The filing of the appeal shall stay the enforcement of any decision suspending or rescinding the permit. The city clerk shall transmit the written statement to the city manager within ten days of its filing and payment of the appeal fee, and the city manager shall set a time and place for a hearing on appeal. A hearing shall be set not later than 60 days from the date of filing of the applicant's written appeal statement with the police department. Notice of the time and place of the hearing shall be given to the appellant in the same manner as provided for the mailing of notice of suspension or rescission at least five days prior to the date set for the hearing. At the hearing, the permittee and the city shall be entitled to legal representation and may present relevant evidence, testify under oath, and call witnesses who shall testify under oath. The city manager shall not be bound by the traditional rules of evidence in a hearing, except that hearsay evidence may not be the sole basis for the decision of the city manager. The city manager may continue the hearing as deemed necessary. The decision of the city manager, or his or her designee, on the appeal shall be final and binding on all parties concerned.

(Ord. No. 510, § 2, 5-4-2021)

(a) It is unlawful for any person to violate any provision or fail to comply with any requirements of this chapter. A violation of this Chapter shall by punished by:

(1) An administrative fine not exceeding $100.00 for a first violation.

(2) An administrative fine not exceeding $200.00 for a second violation within one year of the first violation.

(3) An administrative fine not exceeding $500.00 for each additional violation within one year of the first violation.

(b) A violation of vending without a sidewalk vending permit, may, in lieu of the penalties set forth in subsection (a), set forth above, be punished by:

(1) An administrative fine not exceeding $250.00 dollars for a first violation.

(2) An administrative fine not exceeding $500.00 for a second violation within one year of the first violation.

(3) An administrative fine not exceeding $1,000.00 for each additional violation within one year of the first violation.

(c) If an individual is subject to subsection (b), set forth above, for vending without a sidewalk vending permit, upon the individual providing proof of a valid permit issued by the city, the administrative fines set forth in this chapter shall be reduced to the administrative fines set forth in subsection (a), respectively.

(d) The proceeds of any administrative fines assessed pursuant to this chapter shall be deposited in the treasury of the city.

(e) Failure to pay an administrative fine assessed under this chapter shall not be punishable as an infraction or misdemeanor. Additional fines, fees, assessments, or any other financial conditions beyond those authorized in this chapter shall not be assessed.

(f) Any violation of this chapter shall not be punishable as an infraction or misdemeanor, and any person alleged to have violated any provisions of this chapter shall not be subject to arrest except when otherwise permitted under law.

(g) When assessing an administrative fine pursuant to this chapter, the adjudicator 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.

(1) If the person meets the criteria described in subdivision (a) or (b) of California Government Code § 68632, the city shall accept, in full satisfaction, 20 percent of the administrative fine imposed pursuant to this chapter.

(2) The city may allow the person to complete community service in lieu of paying the total administrative fine, may waive the administrative fine, or may offer an alternative disposition.

(h) A person who is currently serving, or who completed, a sentence, or who is subject to a fine, for a conviction of a misdemeanor or infraction for sidewalk vending, whether by trial or by open or negotiated plea, who would not have been guilty of that offense under SB 946 had SB 946 been in effect at the time of the offense, may petition for dismissal of the sentence, fine, or conviction before the trial court that entered the judgment of conviction in his or her case.

(i) Nothing contained herein shall be construed to impede the city's or county's ability to enforce county health department codes and regulations.

(Ord. No. 510, § 2, 5-4-2021)