Irvine Municipal Code Ch. 14 Regulation of Sidewalk Vendors

A. The purpose of this chapter is to establish a permitting and regulatory program for sidewalk vendors that complies with Senate Bill 946 (Chapter 459, Statutes 2018). The provisions of this chapter allow the City to encourage small business activities by removing total prohibitions on portable food stands and certain forms of solicitation while still permitting regulation and enforcement of unpermitted sidewalk vending activities to protect the public's health, safety and welfare.

B. The City Council hereby finds that to promote the public's health, safety and welfare, restrictions on sidewalk vending are necessary to:

1. Ensure no unreasonable interference with the flow of pedestrian or vehicular traffic including ingress into, or egress from, any residence, public building, place of business, park, areas located within the immediate vicinity of a permitted certified farmers' market and a permitted swap meet, an area designated by a temporary special permit issued by the City, street to the sidewalk, and by persons exiting or entering parked or standing vehicles;

2. Provide continuous access for the use and maintenance of sidewalks, pathways, poles, posts, traffic signs or signals, hydrants, firefighting apparatus, mailboxes, as well as access to locations used for public transportation services;

3. Reduce exposure to the City for personal injury or property damage claims and litigation; and

4. Ensure sidewalk vending activities occur only in locations where such activities would not restrict sidewalk and pathway access and enjoyment by individuals with disabilities pursuant to the American with Disabilities Act of 1990 (Public Law 101-336) and other disability access standards.

(Ord. No. 19-12, Exh. A, 8-13-19)

As used in this chapter, the following terms and phrases shall have the meaning ascribed to them in this part, unless the context in which they are used clearly requires otherwise. If a term or phrase is not defined in this part, or elsewhere in this Code, the most common dictionary definition is presumed to be correct.

Alcohol and alcoholic beverage shall have the same meaning as defined in Section 4-11-501 of this Code, or any successor section.

Cannabis means the substances defined in Section 3-39-1 of the Irvine Zoning Code, or any successor section.

Certified farmers' market means a location operated in accordance with Chapter 10.5 (commencing with Section 47000) of Division 17 of the Food and Agricultural Code and any regulations adopted pursuant to that chapter, or any successor chapter.

Curb face means the vertical or sloping surface on the roadway side of the curb.

Civic center means the grounds, buildings, structures and open areas bounded by Alton Parkway to the south, North of Bill Barber Park, West of Harvard Avenue, and east of the San Diego Creek.

Emergency vehicle access means the roadway, path, or other surface that provides police or fire vehicular access from the dispatched point of origin to a facility, building, parcel, park or portion thereof. Emergency vehicle access includes, but is not limited to, fire lanes, public and private streets, parking lot lanes, access roadways, trails, and walkways.

Food means any item provided in Health and Safety Code Section 113781, or any successor section.

Fire station means any facility where fire engines and other equipment of the Orange County Fire Authority are housed.

Hearing officer means an impartial individual designated to determine appeals pursuant to and in accordance with Section 4-13-308.

Heating element means any device used to create heat.

Merchandise means any item(s) that can be sold and immediately obtained from a sidewalk vendor, which is not considered food. Items for rent shall not be considered merchandise.

Park means any area dedicated or established as a public park, including without limitation active and passive parks.

Pathway or pedestrian pathway means a paved or improved path, or walkway used primarily for pedestrian travel, other than a sidewalk. Pathway or pedestrian pathway does not mean the grassy areas of parks.

Person means and includes all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law trusts, societies, and individuals transacting and carrying on any business in the City.

Public property means all property owned or controlled by the City, including, but not limited to, alleys, parks, pathways, streets, parking lots, sidewalks, and trails.

Residential means any area zoned exclusively as residential in Section 3-37-1 of the zoning Code, including without limitation 2.1 Estate Density Residential, 2.2 Low Density Residential, 2.3 Medium Density Residential, 2.4 Medium-High Density Residential, and 2.5 High Density Residential zoning districts.

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

Sidewalk means that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel.

Sidewalk vending receptacle means a pushcart, stand, display, pedal-driven cart/wagon, showcase, rack, or non-motorized conveyance used for sidewalk vending activities.

Sidewalk vendor or vendor means a person(s) who sells food or merchandise from a sidewalk vending receptacle or from one's person, upon a public sidewalk or pathway.

Sidewalk vendor activities or sidewalk vending activity means actions that qualify a person as a sidewalk vendor or actions done in anticipation of becoming a sidewalk vendor such as, but not limited to, installation, placement, or maintenance of any sidewalk vendor receptacles.

Special event means any temporary permitted event approved by the City.

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

Street or highway means a public or private vehicular right-of-way other than an alley or private drive.

Swap meet means a location operated in accordance with Article 6 (commencing with Section 21660) of Chapter 9 of Division 8 of the Business and Professions Code, and any regulations adopted pursuant to that chapter, or any successor chapter.

Trail means a paved pathway (which may consist of decomposed granite) designed to be used primarily by bicyclists, horses and other modes of transportation including Class 1 (off street) trails and riding and hiking trails as denoted in the General Plan other than primarily for pedestrian travel.

(Ord. No. 19-12, Exh. A, 8-13-19)

A. Permit required. No person, for either themselves or any other person, shall engage in any sidewalk vendor activities within the City without first applying for and receiving a sidewalk vendor permit from the City Manager, or their designee, in accordance with this chapter.

B. Application. A written application for a sidewalk vendor permit shall be filed with the City Manager, or their designee, on a form provided by the City and shall contain the following information:

1. The name, address, telephone number, and email address of the person applying to become a sidewalk vendor;

2. The California driver's license or identification number, individual taxpayer identification number, or municipal identification number (which shall not be available to the public for inspection, is confidential, and shall not be disclosed except as required to administer the permit or comply with a state law or state or federal court order);

3. The name, address, and telephone number of the person who will be in charge of any roaming sidewalk vendors, sidewalk vending activity and/or be responsible for the person(s) working at the sidewalk vending receptacle;

4. The name, address, telephone number, and email address of all person(s) that will be employed as roaming sidewalk vendors or at a sidewalk vending receptacle;

5. The number of sidewalk vending receptacles the sidewalk vendor will operate within the City under the permit;

6. Whether the vendor intends to operate as a stationary sidewalk vendor or a roaming sidewalk vendor;

7. The day(s) and hours of operation the stationary sidewalk vendor intends to operate at such location(s);

8. The location(s) in the City where the stationary sidewalk vendor intends to operate;

9. The dimensions of the sidewalk vendor's sidewalk vending receptacle(s), including a picture of each sidewalk vending receptacle operating under the permit;

10. Whether the sidewalk vendor will be selling food, merchandise, or both;

11. If the sidewalk vendor is selling food, a description of the type of food to be sold, whether such foods are prepared on site, and whether the vendor requires a heating element to prepare the food;

12. If the vendor is selling merchandise, a description of the merchandise to be sold;

13. A copy of Orange County Environmental Health Division Food Facility Health Permit;

14. Proof of their possession of a valid California Department of Tax and Fee Administration seller's permit, which shall be maintained during the pendency of the sidewalk vendor's permit;

15. An acknowledgment that the sidewalk vendor will comply with all other generally applicable local, state, and federal laws;

16. A certification that, to their knowledge and belief, the information contained within the application is true and correct;

17. An agreement by the sidewalk vendor to defend, indemnify, release and hold harmless the City, its City Council, boards, commissions, officers and employees from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to the permit or the vendor's sidewalk vending activities. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, or proceeding whether incurred by the permittee, City, and/or the parties initiating or bringing such proceeding;

18. An acknowledgement that the sidewalk vendor's use of public property is at their own risk and that the City does not take any steps to ensure public property is safe or conducive to the sidewalk vending activities;

19. An acknowledgment by the sidewalk vendor that they will obtain, and at all times for the duration of the permit, maintain any insurance of such types and in such amounts as required by the City's risk manager; and

20. Any other relevant information required by the City Manager.

C. Application and permit fees. Each application for a sidewalk vendor permit shall be accompanied by an application fee as established by resolution of the City Council. The application and permit is only applicable to the individual(s) named on the application. If said permit is approved, it shall not be necessary for the permittee to obtain a City business license to carry on the activities authorized by said permit, unless such permittee maintains a permanent place of business within the City.

(Ord. No. 19-12, Exh. A, 8-13-19)

A. Within 30 calendar days of receiving a complete application, the City Manager may issue a sidewalk vendor permit, with appropriate conditions, as provided for herein, if they find based on all of the relevant information that:

1. The conduct of the sidewalk vendor will not unduly interfere with traffic or pedestrian movement, tend to interfere with or endanger the public peace or rights of nearby residents to the quiet and peaceable enjoyment of their property, or otherwise be detrimental to the public peace, health, safety, or general welfare;

2. The conduct of the sidewalk vendor will not unduly interfere with normal governmental or City operations, threaten to result in damage or detriment to public property, or result in the City incurring costs or expenditures in either money or personnel not reimbursed in advance by the vendor;

3. The conduct of such sidewalk vending activity will not constitute a fire hazard, and all proper safety precautions will be taken;

4. The conduct of such sidewalk vending activity will not require the diversion of police officers to properly police the area of such activity as to interfere with normal police protection for other areas of the City;

5. The sidewalk vendor has paid all previous administrative fines, completed all community service, and completed any other alternative disposition associated in any way with a previous violation of this chapter;

6. The sidewalk vendor has not had a permit revoked within the same calendar year;

7. The sidewalk vendor's application contains all required information;

8. The sidewalk vendor has not made a materially false, misleading, or fraudulent statement of fact to the City in the application process;

9. The sidewalk vendor has satisfied all the requirements of this chapter;

10. The sidewalk vendor has paid all applicable fees as set by City Council resolution;

11. The sidewalk vendor's sidewalk vending receptacle and proposed activities conform to the requirements of this chapter;

12. The sidewalk vendor has adequate insurance to protect the City from liability associated with the sidewalk vendor's activities, including the naming of the City as an additional insured, as determined by the City's risk manager; and

13. The vendor has satisfactorily provided all information requested by the City Manager to consider the vendor's application.

B. A sidewalk vendor permit is non-transferable. Any change in ownership or operation of a sidewalk vendor or sidewalk vending receptacle requires a new permit under this chapter.

C. All permits issued under this chapter, regardless of when issued, expire on December 31 of the year in which they were issued.

(Ord. No. 19-12, Exh. A, 8-13-19)

All sidewalk vendors are subject to the following operating conditions when conducting sidewalk vending activities:

A. All food and merchandise shall be stored either inside or affixed to the sidewalk vendor receptacle or carried by the sidewalk vendor. Food and merchandise shall not be stored, placed, or kept on any public property. If affixed to the sidewalk vendor receptacle, the overall space taken up by the sidewalk vendor receptacle shall not exceed the size requirements provided in this section.

B. The sidewalk vendor permit shall be displayed conspicuously at all times on the sidewalk vending receptacle or the sidewalk vendor's person. If multiple sidewalk vendors are staffing a sidewalk vendor receptacle or working as roaming sidewalk vendors, each person shall wear their permit on their person in a conspicuous manner.

C. Sidewalk vendors shall not leave their sidewalk vending receptacle unattended to solicit business for their sidewalk vending activities. Sidewalk vending receptacles shall not be stored on public property and shall be removed when not in active use by a vendor.

D. All sidewalk vendors shall allow a City police officer, firefighter, or code enforcement officer, at any time, to inspect their sidewalk vending receptacle for compliance with the size requirements of this chapter and to ensure the safe operation of any heating elements used to prepare food.

E. Sidewalk vending receptacles shall not exceed a total height of three feet, a total width of three feet, and a total length of three feet.

F. No sidewalk vending receptacle shall be motorized.

G. If a sidewalk vending receptacle requires more than one person to conduct the sidewalk vending activity, all sidewalk vendors associated with the sidewalk vending receptacle shall be within five feet of the sidewalk vending receptacle when conducting sidewalk vending activities.

H. Sidewalk vendors that sell food shall maintain a trash container in or on their sidewalk vending receptacle and shall not empty their trash into public trashcans. The size of the vendor's trash container shall be taken into account when assessing the total size limit of a sidewalk vending receptacle. Sidewalk vendors shall not leave any location without first picking up, removing, disposing of all trash or refuse from their operation, and returning the site to the condition present at the time the sidewalk vendor arrived.

I. Sidewalk vendors shall maintain a minimum four-foot clear accessible path free from obstructions, including sidewalk vending receptacles and customer queuing area.

J. Sidewalk vendors shall comply with the noise standards provided in Section 6-8-204 of this Code, and any successor chapters.

K. Sidewalk vendors shall not create excessive odors or smells constituting a public nuisance.

L. Sidewalk vendors shall not use any luminaire for the purpose of attracting customers, advertising, decoration, or to an extent constituting a public nuisance. Sidewalk vendors shall only utilize the minimum amount of luminaires necessary for the safe operation of sidewalk vending activities as determined by the City.

M. Sidewalk vendors shall not approach persons to sell food or merchandise and shall not interfere in any way with anyone engaged in an activity to sell food or merchandise.

N. Sidewalk vendors shall not vend to or otherwise conduct transactions with persons in moving vehicles or vehicles illegally parked or stopped.

O. Sidewalk vendors shall immediately clean up any food, grease or other fluid or item related to sidewalk vending activities that falls on public property and return the site to the condition present at the time the sidewalk vendor arrived.

(Ord. No. 19-12, Exh. A, 8-13-19)

A. Sidewalk vendors shall comply with all operating conditions, including those conditions set forth in Section 2-10-1405.

B. Sidewalk vendors shall not engage in any of the following activities:

1. Renting merchandise to customers;

2. Displaying merchandise or food that is not available for immediate sale;

3. Selling of adult-oriented material, cannabis, or alcohol;

4. Using an open flame on or within any sidewalk vending receptacle;

5. All sidewalk vendors, regardless of whether a roaming sidewalk vendor or stationary sidewalk vendor, are prohibited from conducting sidewalk vending activities between the hours of 10:00 p.m. and 7:00 a.m. daily or consistent with the hours of operation of the businesses on the same street. In residential areas, all stationary sidewalk vending is prohibited. In residential areas, roaming sidewalk vending activity is prohibited between the hours of 6:00 p.m. or sunset, whichever is earlier, and 9:00 a.m. of the following day, Monday through Saturday, inclusive, and all day on Sundays and federal holidays.

6. Continuing to offer food or merchandise for sale, following, or accompanying any person who has been offered food or merchandise after the person has asked the vendor to leave or after the person has declined the offer to purchase food or merchandise;

7. Knowingly making false statements or misrepresentations during the course of offering food or merchandise for sale;

8. Blocking or impeding the path of the person(s) being offered food or merchandise to purchase;

9. Making any statements, gesture, or other communication which a reasonable person in the situation of the person(s) being offered food or merchandise to purchase would perceive to be a threat and which has a reasonable likelihood to produce in the person(s) a fear that the threat will be carried out; and

10. Touching the person(s) being offered to purchase food or merchandise without that person(s)' consent.

11. Sidewalk vendors shall not engage in sidewalk vending activities at the following locations:

i. Within 12 inches of any curb face on all roads.

ii. Within 15 feet of any entrance or exit to a building, structure or facility.

iii. On any designated emergency vehicle access way.

iv. Any public property that does not meet the definition of a sidewalk or pathway including, without limitation, any alley, trail, street, roadway, or parking lot;

v. Within the immediate vicinity of an area designated for a temporary special permit issued by the City, during the limited duration of the temporary special permit. If the City provides any notice, business interruption mitigation, or other rights to affected businesses or property owners under the City's temporary special permit, such notice will also be provided to any sidewalk vendors specifically permitted to operate in the area, if applicable; or

vi. On any private property without the express written consent of the owner or lessee of the property.

vii. Sidewalk vendors shall not engage in sidewalk vending activities within 200 feet of another sidewalk vendor.

viii. Sidewalk vendors shall not engage in sidewalk vending activities within 500 feet of a school, a place of worship, or a child day-care facility.

ix. Sidewalk vendors shall not engage in sidewalk vending activities within 200 feet of a permitted certified farmers' market or swap meet during the limited operating hours of that certified farmers' market or swap meet.

x. Stationary sidewalk vending activities shall only occur on sidewalks or pathways with a minimum width of eight feet or larger.

xi. Any public property other than a sidewalk or pedestrian pathway, including, without limitation, streets, alleys, plazas, and City-owned parking structures, as defined in this Municipal Code;

xii. Within 500 feet of the nearest property line of any property on which a place of worship or general child day care facility is located while the same is in use;

xiii. Within 500 feet of the nearest property line of any property on which a school building or facility, including an athletic field, is located while the same is in use, including for afterschool child care, enrichment classes and sports;

xiv. Within 100 feet of a public picnic area, playground area or playground equipment while the same is in use;

xv. Within 100 feet of a public community center, athletic field, softball/baseball diamond, basketball court, handball court, pickle ball court, tennis court, soccer field, or volleyball court while the same is in use;

xvi. Within 100 feet of a police officer, firefighter, or emergency medical personnel who is actively performing their duties or providing services to the public;

xvii. Within 100 feet of a street intersection or traffic signal;

xviii. Within 100 feet of any entrance to a park;

xix. Within 100 feet of the portion of any City facility that is renting merchandise to the public or where rental merchandise is stored;

xx. Within 25 feet of a litter receptacle, bike rack, newspaper stand, or restroom;

xxi. Within 25 feet of a fire hydrant, fire call box, police call box, traffic signal controller, or streetlight controller;

xxii. Within 25 feet of a door 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 within the premises;

xxiii. Within 25 feet of a pedestrian entrance/exit or elevator lobby of a City-owned parking structure;

xxiv. With five feet of parking along a curb;

xxv. Within 25 feet of a red curb if not adjacent to a parking meter or loading zone or a curb if posted for permanent no parking;

xxvi. Within 100 feet of an alley, parking lot or parking garage vehicle entrance/exit;

xxvii. Within 25 feet of any driveway or driveway approach;

xxviii. Within 25 feet of a marked crosswalk;

xxix. Within 25 feet of the curb return of an unmarked crosswalk;

xxx. Within any median strip or dividing section;

xxxi. Within 40 feet of a tour bus loading zone or staging zone during the time posted;

xxxii. Within 25 feet of a bus stop, taxi stand, bus bench, or bus shelter;

xxxiii. Within 200 feet of a police station or fire station;

xxxiv. Within 200 feet of a train station entrance or exit;

xxxv. Within 25 feet of an automated teller machine or parking pay station;

xxxvi. Within 25 feet of public art objects, items, and displays;

xxxvii. If a stationary sidewalk vendor, within a park owned or operated by the City if the City has signed an agreement for concessions that exclusively permits the sale of food or merchandise by the concessionaire;

xxxviii.

Within 200 feet of the Civic Center; and

xxxix. Within 200 feet of a backup City Emergency Operations Center, identified in the City's Emergency Operations Plan, during the operational period.

C. Sidewalk vending receptacles shall not touch, lean against or be affixed at any time to any building or structure including, but not limited to lampposts, parking meters, mailboxes, traffic signals, fire hydrants, benches, bus shelters, newsstands, trashcans, or traffic barriers.

(Ord. No. 19-12, Exh. A, 8-13-19)

A. Violations of this chapter shall not be prosecuted as infractions or misdemeanors and shall only be punished by the following administrative fine and rescission provisions:

B. Any violation of this chapter may be 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; and

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

C. If a sidewalk vendor violates any portion of this chapter and cannot present the citing officer with a proof of a valid permit, the sidewalk vendor may be punished by:

1. An administrative fine not exceeding $250.00 for a first violation;

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

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

D. Upon proof of a valid permit issued by the City, the administrative fines set forth in subsection C. shall be reduced to the administrative fines set forth in subsection B., or any successor sections.

E. The City Manager, or their designee, may rescind a permit issued to a sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations.

(Ord. No. 19-12, Exh. A, 8-13-19)

A. Decisions to deny an application for a permit or to impose administrative fines may be appealed by any interested person. Appeals shall be heard and determined by the hearing officer.

B. Appeals shall be initiated within 21 calendar days of the decision or imposition of administrative fine. Notwithstanding any other provision of law, a person appealing an administrative fine is not required to pay the administrative fine as a prerequisite to filing an appeal.

C. Appeals of decisions or administrative fines shall be made in writing to the hearing officer on forms provided by the City.

D. The appeal shall state the facts and basis for the appeal.

E. Appeals of a decision to deny an application for a permit shall be accompanied by a fee as established by resolution of the City Council.

F. Decisions regarding administrative fines that are appealed shall not become effective until the appeal is resolved.

G. An appeal shall be scheduled for a hearing before the hearing officer within 30 calendar days of the filing of the appeal unless both the appellant and the hearing officer consent to a later date.

H. The hearing officer shall give notice in writing to the appellant of the time and location of the appeal hearing. At the hearing, the hearing officer shall review the record of the decision or administrative fine and hear testimony of the appellant, if any, the applicant and any other interested party. The appeal shall be reviewed and determined on a de nova basis.

1. If an administrative fine is the subject of an appeal, the hearing officer shall take into consideration the person's ability to pay the fine. The hearing officer shall provide the person with notice of their 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 or before the hearing or while the administrative fine remains unpaid.

2. If the person meets the criteria described in subdivision (a) or (b) of Government Code Section 68632, or any successor section, the hearing officer shall accept, in full satisfaction, 20 percent of the administrative fine imposed pursuant to this chapter.

3. The hearing officer 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.

I. After the hearing, the hearing officer shall affirm, modify or reverse the original decision or administrative fine. When a decision or administrative fine is modified or reversed, the hearing officer shall state the specific reasons for modification or reversal. Decisions on appeals shall be rendered within 30 calendar days of the close of the hearing. The hearing officer shall mail notice of a decision to the appellant. Such notice shall be mailed within five working days after the date of the decision to the appellant. The decision of the hearing officer shall be final.

(Ord. No. 19-12, Exh. A, 8-13-19)