La Palma Municipal Code Art. VI Sidewalk Vendors

(a) The purpose of this article 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 article allow the City to regulate small business activities on its public sidewalks and public rights-of-way by removing prohibitions on portable food stands and certain forms of solicitation while still permitting regulation and enforcement of 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, or place of business, or from the street to the sidewalk, by persons exiting or entering parked or standing vehicles.

(2) Provide reasonable 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 or private transportation services.

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

(4) Maximize public access to and along public sidewalks and rights-of-way.

(5) Ensure sidewalk vending activities occur only in locations where such activities would not restrict sidewalk and pathway access and their use and enjoyment by individuals with disabilities.

(Ord. No. 2022-07, § 4, 8-2-2022)

As used in this article, 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.

Alcohol and alcoholic beverage shall have the same meaning as defined in Business and Professions Code § 23000 et seq.

Cannabis means the substances defined in section 44-10 of this Code, or any successor section.

Certified farmers' market means a location operated in accordance with Food and Agricultural Code § 47000 et seq. and any regulations adopted pursuant to that chapter, or any successor chapter.

Community Services Director means the person at the City that manages the Community Services Department which encompasses engineering, maintenance, water, and recreation services and his or her designee.

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

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

Food means any item regulated under Health and Safety Code § 113700 et seq., the California Uniform Retail Food Facilities Law, or any successor section.

Hearing officer means an impartial individual designated by the Community Services Director to determine appeals pursuant to and in accordance with section 2-385 of this Code.

Heating element means any device used to create heat for food preparation.

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 means a paved path or walkway for pedestrian travel, other than a sidewalk.

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, boardwalks, parks, pathways, streets, rights-of-way, parking lots, sidewalks, and walking trails.

Residential means any area in chapter 44, article II, division 2 of this Code which is zoned exclusively as residential.

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, without limitation, a pushcart, stand, display, cart, wagon, showcase, rack, table, non-motorized or non-pedal-driven conveyance, or any other structure or means of display 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 receptacle.

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 means a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel.

Swap meet means a swap met or flea market, as defined in Business and Professions Code § 21661, and any regulations adopted pursuant to the chapter of which it is a part, or any successor chapter.

(Ord. No. 2022-07, § 4, 8-2-2022)

(a) Permit. No person, either for himself/herself or any other person, shall engage in any sidewalk vendor activities within the City without first applying for and receiving a sidewalk vendor right-of-way encroachment permit from the Community Services Department in accordance with this article.

(b) Application. A written application for a sidewalk vendor right-of-way encroachment permit shall be filed with the Community Services Department on a form provided by the City and shall contain the following information:

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

(2) The California driver's license or identification number, individual taxpayer identification number, or other identification number acceptable to the Community Services Department (which shall not be available to the public for inspection, is confidential, and shall not be disclosed except as required to administer the sidewalk vendor right-of-way encroachment 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, and telephone number of all persons who 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 sidewalk vendor right-of-way encroachment 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 public sidewalks and rights-of-way 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 sidewalk vendor right-of-way encroachment 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 any health permit required for any sidewalk vendors selling food, as required by law. A copy of said permit shall be provided to the City Business License Officer.

(14) Proof that the sidewalk vendor maintains a valid State Department of Tax and Fee Administration seller's permit, which shall be maintained during the pendency of the sidewalk vendor's sidewalk vendor right-of-way encroachment permit. A copy of said permit shall be provided to the City Business License Officer.

(15) An acknowledgment that the sidewalk vendor will comply with all other generally applicable local, state, and federal laws and obtain a valid City Business License from the City Business License Officer.

(16) A certification that, to his or her 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 sidewalk vendor right-of-way encroachment 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 his or her own risk, that the City does not take any steps to ensure public property is safe or conducive to the sidewalk vending activities, and that the sidewalk vendor uses any and all public property at his or her own risk.

(19) An acknowledgment by the sidewalk vendor that he or she will obtain and, at all times during the duration of the sidewalk vendor right-of-way encroachment permit, maintain a copy of the vendor's general liability insurance certificate naming the City as an additional insured "showing that there is in full force and effect liability and property damage insurance, written on an occurrence basis, covering every activity of the proposed sidewalk vending in a minimum amount of $1,000,000.00 for death and bodily injury to one person and $1,000,000.00 property damage.

(20) Any other relevant information required by the Community Service Director or his or her designee that is necessary to comply with this article.

(c) Application and permit fees. Each application for a sidewalk vendor right-of-way encroachment permit shall be accompanied by the minimum right-of-way encroachment application fee located in Schedule No. 4 Community Services Fees as established by resolution of the City Council. The application and sidewalk vendor right-of-way encroachment permit is only applicable to the individual(s) named on the application.

(Ord. No. 2022-07, § 4, 8-2-2022)

(a) Within 30 calendar days of receiving a complete application, the Community Services Director, or his or her designee, shall issue a sidewalk vendor right-of-way encroachment permit, with appropriate conditions, as provided for herein, if he or she finds based on all of the relevant information that:

(1) The conduct of the sidewalk vendor will not unduly interfere with traffic or pedestrian movement, or 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 and completed any other alternative disposition associated in any way with a previous violation of this article.

(6) The sidewalk vendor has not had a sidewalk vendor right-of-way encroachment permit revoked within the past 24 months.

(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 article.

(10) The sidewalk vendor has paid all applicable fees as set by Schedule No. 4 Community Service Fees as established by City Council resolution.

(11) The sidewalk vendor's sidewalk vending receptacle and proposed activities conform to the requirements of this article.

(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, in an amount as required by this article.

(13) The vendor has satisfactorily provided all information requested by the Community Services Director, or his or her designee, to consider the vendor's application.

(14) The vendor has satisfactorily provided all information requested by the City Business License Officer to warrant issuance of a City business license concurrently with or prior to the sidewalk vendor right-of-way encroachment permit.

(b) A sidewalk vendor right-of-way encroachment permit is non-transferable. Any change in ownership or operation of a sidewalk vendor or sidewalk vending receptacle requires a new sidewalk vendor right-of-way encroachment permit under this article.

(c) All sidewalk vendor right-of-way encroachment permits issued under this section, regardless of when issued, expire on December 31 of the year in which they were issued, which coincides with the expiration of their City business license.

(Ord. No. 2022-07, § 4, 8-2-2022)

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

(1) 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.

(2) The sidewalk vendor right-of-way encroachment permit shall be displayed conspicuously at all times on the sidewalk vending receptacle.

(3) 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.

(4) All sidewalk vendors shall allow a City police officer, firefighter, life safety services officer, or City employee designated as a code enforcement official by resolution of the City Council, at any reasonable time, to inspect their sidewalk vending receptacle for compliance with the size requirements of this article and to ensure the safe operation of any heating elements used to prepare food.

(5) 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.

(6) No sidewalk vending receptacle shall be motorized or pedal-driven.

(7) 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.

(8) 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 considered when assessing the total size limit of a sidewalk vending receptacle. Sidewalk vendors shall not leave any location without first picking up, removing, and disposing of all trash or refuse resulting from their operations.

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

(10) Sidewalk vendors shall comply with the noise standards provided in section 44-267 of this Code, and any successor regulations.

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

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

(13) Sidewalk vendors shall immediately clean up any food, grease or other fluid or item related to sidewalk vending activities that falls on public property.

(14) Sidewalk vendors shall be responsible for any damage to property or injury to person arising from their operations.

(Ord. No. 2022-07, § 4, 8-2-2022)

(a) Sidewalk vendors shall comply with all operating conditions, in addition to all applicable regulations included in this article.

(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, advertising, or displaying any adult-oriented material.

(4) Selling, advertising, or displaying any weapons.

(5) Selling, advertising, or displaying of cannabis, tobacco products, products that contain nicotine, any product or device used to smoke/vape nicotine or cannabis including e-cigarettes and e-liquids, drugs, or alcohol.

(6) Using an open flame on or within any sidewalk vending receptacle.

(7) 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 11:00 p.m. and 6:00 a.m. when located within 300 feet of any property zoned R-1, R-3 or VRO within the City. The foregoing limitation shall not apply when an approved precise plan or conditional use permit provides for expanded hours for other businesses or uses on the same street as the sidewalk vendor, located within 300 feet of any property zoned R-1, R-3, or VRO, in which case the same expanded hours shall apply to the sidewalk vending activities. No time restriction shall apply to all sidewalk vendors operating 300 feet or more from R-1, R-3 or VRO zoned properties. In residentially zoned areas, all stationary sidewalk vending is prohibited. In residentially zoned 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.

(8) Continuing to offer food or merchandise for sale, and/or 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.

(9) Knowingly making false statements or misrepresentations during the course of offering food or merchandise for sale.

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

(11) 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.

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

(13) Violating any Federal, State, or local law regulation.

(c) Sidewalk vendors shall not engage in sidewalk vending activities at the following locations:

(1) Within 12 inches of any curb face on all roads.

(2) Within 15 feet of any entrance or exit to a building, structure or facility.

(3) On any designated emergency vehicle access way.

(4) On any public property that does not meet the definition of a sidewalk or pathway including without limitation any alley, park, street, roadway or parking lot.

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

(6) On any private property without the express written consent of the owner or lessee of the property.

(7) Sidewalk vendors shall not engage in sidewalk vending activities within 50 feet of another sidewalk vendor.

(8) Sidewalk vendors shall not engage in sidewalk vending activities within 100 feet of a school zone, a place of worship, or a child day-care facility.

(9) 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.

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

(11) Sidewalk vendors shall not engage in sidewalk vending activities within 25 feet of a:

a. Fire hydrant.

b. Curb which has been designated as yellow or red zone, or a bus zone.

c. Automated teller machine.

d. Driveway, alley, or street corner.

e. Trash or recycling receptacles, bike racks, benches, bus stops or similar public use items.

f. Public art objects, items, and displays.

(12) Sidewalk vendors shall not engage in sidewalk vending activities that would violate provisions of this Code relating to visibility requirements for streets, alleys, driveways, and intersections.

(13) On any sidewalk with a gradient in excess of ten percent.

(14) Within 200 feet of any public safety facility, including without limitation police stations and fire stations.

(15) Within 24 inches of a parallel parking space.

(16) On any sidewalk where vending equipment and queuing patrons would reduce clearance to less than four feet.

(17) On any sidewalk where vending equipment and queuing patrons would restrict access requirements below standards required by the Americans with Disabilities Act.

(18) On any sidewalk where vending equipment and queuing patrons would jeopardize the fire or life safety of any person or otherwise cause any damage.

(d) 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. 2022-07, § 4, 8-2-2022)

(a) Violations of this article 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 article 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.

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

(c) Notwithstanding the foregoing, vending without a sidewalk vendor right-of-way encroachment permit is punishable by the following fines:

(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.

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

(4) Upon proof of a valid permit issued by the local authority, the administrative fines set forth in this subsection shall be reduced to the administrative fines set forth in subsection (b) immediately above.

(d) The Community Services Director, or his or her designee, may rescind a sidewalk vendor right-of-way encroachment permit issued to a sidewalk vendor for the term of that sidewalk vendor right-of-way encroachment permit upon the fourth violation or subsequent violations.

(Ord. No. 2022-07, § 4, 8-2-2022)

(a) Decisions to deny an application for a sidewalk vendor right-of-way encroachment permit, rescind a sidewalk vendor right-of-way encroachment permit, or to impose administrative fines may be appealed by any interested person. Any sidewalk vendor right-of-way encroachment permit applicant, or permittee affected by any decision, action or determination made by the Community Service Director or his or her designee, or notice of violation issued by any City Inspector, may file a written request for an appeal with the City Clerk's Office. The appeal process shall be conducted according to the administrative hearing provisions established in section 2-385 with the City Manager or his or her designee acting as the hearing officer. The order of the City Manager shall be final in all respects.

(b) Appeals shall be initiated within ten 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 City Clerk's Office on forms provided by the City. The appeal shall state the facts and basis for the appeal.

(d) Appeals of a decision to deny an application for a sidewalk vendor right-of-way encroachment permit shall be accompanied by a fee as established by resolution of the City Council.

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

(f) An appeal shall be scheduled for a hearing before the hearing officer within 45 calendar days of the filing of the appeal unless both the appellant and the hearing officer consent to a later date.

(g) 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 novo 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 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 or before the hearing or while the administrative fine remains unpaid.

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

(h) 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. 2022-07, § 4, 8-2-2022)