Menifee Municipal Code Ch. 5.70 Sidewalk Vendors

(A) The intent of this chapter is to establish regulations 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 and merchandise 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, 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 transportation services; and

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

(C) The City Council hereby finds that the unique characteristics of the city require certain restrictions on sidewalk vending as follows:

(1) Parks. The city's parks provide recreational opportunities and restrictions on sidewalk vending are necessary to protect the natural resources, recreational opportunities, as well as scenic and natural character of these parks, and the health, safety and welfare of those persons engaged in active sports activities as well as spectators of sporting activities.

(2) Sidewalks. Many of the sidewalks and pathways in the city are under seven feet wide and sidewalk vending in these areas would unreasonably interfere with the flow of pedestrians and disrupt access for persons with disabilities.

(Ord. 2018-263, passed 12-19-2018)

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. Ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source or by whatever process produced pursuant to Business and Professions Code section 23003.

ALCOHOLIC BEVERAGE. Includes alcohol, spirits, liquor, wine, beer, and every liquid or solid containing alcohol, spirits, wine, or beer, and which contains 0.5% or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances pursuant to Business and Professions Code section 23004.

CODE or MMC. The City of Menifee Municipal Code.

DIRECTOR. The Community Development Director of the City of Menifee or his or her designee.

FARMERS' MARKET. 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.

FOOD. Any item provided in Health and Safety Code Section 113781, or any successor section.

FOOD VENDOR. Any restaurant or retail food vendor located or operating within the city, including any sidewalk vendor that sells food.

HEARING OFFICER. The City Manager or his or her designee.

HEATING ELEMENT. Any device used to create heat for food preparation.

MARIJUANA. The substances defined in Section 9.70.020 of the code, or any successor section.

MERCHANDISE. 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. Any area dedicated or established as a public park.

PATHWAY. A paved or improved path or walkway developed primarily for pedestrian travel, other than a sidewalk. PATHWAY does not include emergency shoulders abutting paved roadways and highways throughout the city. Such emergency shoulders are designated for vehicles to pull over in the event of an emergency only.

PERSON. 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. All property owned or controlled by the city, including, but not limited to, alleys, parks, pathways, streets, parking lots, sidewalks, and walking trails.

RESIDENTIAL. Any area zoned exclusively as residential in Title 9 of this code.

ROAMING SIDEWALK VENDOR. A sidewalk vendor who moves from place-to-place and stops only to complete a transaction.

SIDEWALK. That paved or improved portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation developed primarily for pedestrian travel. SIDEWALK does not include emergency shoulders abutting paved roadways and highways throughout the city. Such emergency shoulders are designated for vehicles to pull over in the event of an emergency only.

SIDEWALK VENDING RECEPTACLE. A pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or non-motorized conveyance used for sidewalk vending activities.

SIDEWALK VENDOR or VENDOR. 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. 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. Any temporary permitted event approved by the city.

STATIONARY SIDEWALK VENDOR. A sidewalk vendor who vends from a fixed location.

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

SWAP MEET. 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.

VENDING. The offering or displaying for sale or selling of any food, merchandise, goods, or wares.

(Ord. 2018-263, passed 12-19-2018)

(A) Permit required. 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 permit from the Director in accordance with this chapter.

(B) Application. A written application for a sidewalk vendor permit shall be filed with the Planning Department to be approved by the Director 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 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;

(3) The name, address, and telephone number of all persons that will be employed as roaming sidewalk vendors or at a sidewalk vending receptacle;

(4) The number of sidewalk vending receptacles the sidewalk vendor will operate within the city under the permit;

(5) Whether the vendor intends to operate as a stationary sidewalk vendor or a roaming sidewalk vendor;

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

(7) the location(s) in the City where the stationary sidewalk vendor intends to operate;

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

(9) Whether the sidewalk vendor will be selling food, merchandise, or both;

(10) 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;

(11) If the vendor is selling merchandise, a description of the merchandise to be sold;

(12) A copy of the County of Riverside Environmental Health Permit required for any sidewalk vendors selling food, as required by chapter 5.01.140 of this Code, or any successor chapter;

(13) Proof of his or her 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;

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

(15) A certification that, that to his or her knowledge and belief, the information contained within the application is true and correct;

(16) 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 licensee, City, and/or the parties initiating or bringing such proceeding;

(17) Proof of business and general liability insurance covering the City of Menifee;

(18) An acknowledgment that the sidewalk vendors use of public property is at their own risk, the city does not take any steps to ensure public property is safe or conducive to the sidewalk vending activities, and the sidewalk vendor uses public property at his or her own risk; and

(19) Any other relevant information required by the Director.

(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 permit to carry on the activities authorized by said permit, unless such licensee maintains a permanent place of business within the city.

(Ord. 2018-263, passed 12-19-2018)

(A) Within 30 calendar days of receiving a complete application, the Director may issue a sidewalk vendor 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, completed all community service, and completed any other alternative disposition associated in any way with a previous violation of this code;

(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 via resolution which may be updated from time to time;

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

(12) The vendor has satisfactorily provided all information requested by the Director 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) Brick-and-mortar business in the city that possesses a business license must also obtain a permit to operate a sidewalk vending business, which is considered a distinct and separate operation from the brick-and-mortar business, unless the sidewalk vending activity is a part of an outdoor display allowed under a temporary use permit for a special event.

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

(Ord. 2018-263, passed 12-19-2018)

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) Sidewalk vendors shall not cause damage to city property, including furniture, landscaping, irrigation, or any other facilities or structures located in the public right-of-way.

(E) All sidewalk vendors shall allow a city police officer, firefighter, life safety services officer, 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.

(F) 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.

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

(H) No sidewalk vendor shall utilize machines, electronics, or other objects to generate noise.

(I) No sidewalk vendor may employ the use of lights or automated moving displays.

(J) 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.

(K) 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, and disposing of all trash or refuse from their operation.

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

(M) Sidewalk vendors shall comply with the noise standards provided in Chapter 9.09 of this code, and any successor chapters.

(Ord. 2018-263, passed 12-19-2018)

(A) Sidewalk vendors shall comply with all operating conditions, including those conditions set forth in Section 5.70.050.

(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 materials, marijuana, alcohol, or alcoholic beverages;

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

(5) In nonresidential areas, all sidewalk vendors, regardless of whether a roaming sidewalk vendor or stationary sidewalk vendor, operating after sunset shall provide adequate lighting in the immediate vicinity of the sidewalk vending receptacle to ensure safe transactions with the public.

(6) In residential areas, all stationary sidewalk vending is prohibited. In residential areas, roaming sidewalk vending activity is prohibited from one-half hour after sunset to one-half hour before sunrise.

(7) 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;

(8) 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;

(9) Sidewalk vendors shall not vend or sell food or merchandise to any persons in a moving vehicle or in an illegally parked or stopped vehicle;

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

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

(12) 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

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

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

(1) Any public property that does not meet the definition of a sidewalk or pathway including any alley, park, street, or parking lot;

(2) Within 200 feet of an area designated for a temporary special event permitted by the city, including parks, during the limited duration of the temporary special event permit, unless the sidewalk vendor is specifically associated with the temporary special event permittee. 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 licensed to operate in the area, if applicable;

(3) On any private property without the express written consent of the owner or lessee of the property;

(4) Sidewalk vendors shall not engage in sidewalk vending activities within 25 feet of another sidewalk vendor;

(5) Sidewalk vendors shall not engage in sidewalk vending activities within 200 feet of a place of worship;

(6) Sidewalk vendors shall not engage in sidewalk vending activities within 200 feet of a police or fire station;

(7) Sidewalk vendors shall not engage in sidewalk vending activities within 100 feet of any public picnic area, playground area, or playground equipment;

(8) Sidewalk vendors shall not engage in sidewalk vending activities within 200 feet a permitted farmers' market or swap meet during the limited operating hours of that farmers' market or swap meet;

(9) Stationary sidewalk vending activities shall only occur on sidewalks or pathways with a minimum width of seven feet or larger;

(10) Sidewalk vendors shall not engage in sidewalk vending activities within 50 feet of an Automated teller machine (ATM);

(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 white, yellow, green, blue, or red zone, or a bus zone;

(c) Driveway, alley, intersection, or street corner;

(d) Entrance or exit to a building, structure or facility; or

(e) Trash receptacles, bike racks, benches, bus stop or similar public use items.

(12) Sidewalk vendors shall not engage in sidewalk vending activities within 200 feet of a school nor vend within one hour of school or child daycare facility start time or within one hour of school or child daycare facility end time;

(13) Stationary sidewalk vendors shall not sell food or merchandise or engage in any sidewalk vending activities at any park where the city has signed an agreement for concessions that exclusively allows the sale of food or merchandise by a concessionaire.

(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, trash cans, or traffic barriers.

(Ord. 2018-263, passed 12-19-2018)

Violations of Sections 5.70.010 - 5.70.060 shall be set by the City Council are as follows:

(A) Violations of Sections 5.70.010 - 5.70.060, inclusive, shall not be prosecuted as infractions or misdemeanors and shall only be punished by the following administrative fine and revocation structure:

(1) Violation by permitted sidewalk vendor. Any violation of Sections 5.70.010 - 5.70.060 , inclusive, may be punished by fines as set by the City Council via resolution and which may be updated from time to time.

(2) Violation by un-permitted sidewalk vendor. If a sidewalk vendor violates any portion of Sections 5.70.010 - 5.70.060 , inclusive, and cannot present the citing officer with a proof of a valid permit, the sidewalk vendor may be punished by fines as set by the City Council via resolution and which may be updated from time to time.

(B) Upon proof of a valid permit issued by the City, the administrative fines set forth in Subsection 5.70.070(A)(2) shall be reduced to the administrative fines set forth in subsection 5.70.070(A)(1), or any successor sections.

(C) The Director may revoke a permit issued to a sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations.

(Ord. 2018-263, passed 12-19-2018)

(A) Appeal of decision by Director regarding sidewalk vendor permits.

(1) Decisions of the Director may be appealed to the Planning Commission. Decisions of the Planning Commission may be appealed to the City Council. Appeals may be submitted by any interested person, in writing, and must include the specific grounds for the appeal. All appeals must be accompanied by the fee set by the City Council.

(2) Unless otherwise provided by a specific provision of this Code, all written appeals (whether of a Community Development Director's decision or of the Planning Commission) with payment of the fee, must be submitted to the City Clerk no more than ten calendar days after adoption of the resolution or other notice of decision.

(3) The Planning Commission or City Council shall conduct a public hearing on the appeal within 30 days from the date of receipt of the appeal, which hearing may be continued from time to time. Notice of the public hearing shall be given in the same manner as original hearing.

(4) A timely appeal suspends and sets aside the decision of the lower authority.

(5) All appeals are de novo; the Planning Commission or City Council may approve, deny or modify the recommendation of the lower authority.

(6) Any Planning Commissioner or City Council member may appeal a project according to the procedures and within the time frames set out here without payment of the appeal fee.

(B) Appeal of issuance of administrative citation.

(1) Decisions of the Director may be appealed to the Hearing Officer by a recipient of an administrative citation.

(2) Appeals for an administrative citation shall be initiated within 30 calendar days of the decision by the Director.

(3) A request for hearing form may be obtained from the City Clerk. A request for hearing must be accompanied by an advanced deposit of the administrative fine, unless the recipient of the administrative citation obtains an advanced hardship waiver pursuant to Section 5.70.080, subdivision (C).

(4) The person requesting the hearing shall be notified of the time and place set for the hearing at least 15 days prior to and not more than 60 days from the date the date of the hearing.

(5) At the hearing, the party contesting an administrative citation shall be given the opportunity to testify and to present evidence concerning the administrative citation.

(6) The failure of any recipient of any administrative citation to appear at the administrative citation hearing shall constitute a forfeiture of the fine and a failure to exhaust administrative remedies.

(7) The administrative citation and any additional report submitted by the Director shall constitute prima facie evidence of the respective facts contained in those documents.

(8) The Hearing Officer may continue the hearing and request additional information from the Director or the recipient of the administrative citation prior to issuing a written citation.

(9) After considering all of the testimony and evidence submitted at the hearing, the Hearing Officer shall issue a brief written decision stating the reasons for upholding or cancelling the administrative citation. The decision of the Hearing Officer shall be final.

(10) If the Hearing Officer determines that the administrative citation should be upheld, 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 discussed in Section 5.70.080, subdivision (B)(11). The person may request an ability-topay determination at or before the hearing or while the administrative fine remains unpaid.

(11) If the person meets the criteria described in subdivisions (a) or (b) of Government Code Section 68632, or any successor section, the Hearing Officer shall accept, in full satisfaction, 20% of the administrative fine imposed pursuant to Sections 5.70.010-5.70.060, inclusive.

(12) 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.

(13) If a person does not satisfy the ability-to-pay requirements, all fines deposited with the city shall remain with the city after the Hearing Officer upholds the issuance of an administrative citation.

(14) If the Hearing Officer determines that the administrative citation should be canceled and the fine was deposited with the city, then the city shall promptly refund the amount of the deposited fine, together with interest at the average rate earned on the city's portfolio for the period of time that the fine amount was held by the city.

(15) The recipient of the administrative citation shall be served with a copy of the Hearing Officer's written decision in the same manner as notices (MMC, § 1.03.150).

(C) Advanced deposit hardship waiver.

(1) Any person who intends to request a hearing to contest that there was a violation of the code or that he or she is the responsible party and who is financially unable to make the advance deposit of the fine may file a request for an advance deposit hardship waiver.

(2) The request shall be filed with the City Clerk on an advance deposit hardship waiver application form, available from the City Clerk, within ten days of the date of the administrative citation.

(3) The requirement of depositing the full amount of the fine shall be stayed unless or until the City Clerk makes a determination not to issue the advance deposit hardship waiver.

(4) The City Clerk may waive the requirement of an advance deposit and issue the advance deposit hardship waiver only if the cited party submits to the City Clerk a sworn affidavit, together with any supporting documents or materials, demonstrating the person meets the criteria set forth in Government Code Section 68632, subdivisions (a) or (b).

(5) If the City Clerk determines not to issue an advance deposit hardship waiver, the person shall remit the deposit to the city within ten days of that decision or 30 days from the date of the administrative citation, whichever is later.

(6) The City Clerk shall issue a written determination listing the reasons for his or her determination to issue or not issue the advance deposit hardship waiver. The written determination of the City Clerk shall be final.

(7) The written determination of the City Clerk shall be served upon the person who applied for the advance deposit hardship waiver.

(Ord. 2018-263, passed 12-19-2018)