Modesto Municipal Code Art. 12 Sidewalk Vendors

Footnotes:

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Editor's note— Ord. No. 3724-C.S., § 1, adopted November 10, 2020, repealed the former Art. 12, §§ 4-1.1201—4-1.1214, and enacted a new Art. 12 as set out herein. The former Art. 12 pertained to sidewalk food vendors and derived from Ord. 2439-C.S., § 1, amended by Ord. 2645-C.S., § 1, effective 3-30-89; Ord. 2855-C.S., effective 7-1-93; Ord. 2896-C.S., § 1, and Ord. 3417-C.S., § 1, effective 10-5-06.

Regulation of the sale of food and merchandise on public sidewalks will benefit the City by promoting entrepreneurship, while ensuring the protection of the public health, safety, and welfare. The requirements set forth by this chapter are necessary to ensure the free and safe flow of vehicular and pedestrian traffic in the public right-of-way, that vending does not adversely impact the public welfare, and that food vendors adhere to County public health requirements.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

For the purposes of this article the following words and phrases are defined as follows:

(a) "Certified farmers' market" shall be defined as provided for in California Administrative Code Title 3, Section 1392.2(a), or as amended thereof.

(b) "Code Enforcement Officer" shall mean any officer or other designated authority charged with the administration and enforcement of this Code, or duly authorized representative.

(c) "Controlled Substance" shall mean any drug which is classified as a controlled substance as defined by the California Health and Safety Code.

(d) "Designated Location" shall mean a specific location on a public sidewalk which has been allocated a permit by the City of Modesto for exclusive use in a vending cart operation.

(e) "Enforcement agency" shall be defined any Department or Division of the City of Modesto having jurisdiction tasked with the enforcement of all sections of this Ordinance including those provided for in Section 113773 of the Health and Safety Code.

(f) "Food" shall mean any type of edible substance or beverage.

(g) "Merchandise" shall mean any tangible item or good that is not food.

(h) "Peace officer" shall mean a civil officer appointed to preserve law and order, such as a sheriff or police officer.

(i) "Permit" shall mean a permit issued by the City of Modesto authorizing the use of a designated location for use by a vending cart operator.

(j) "Person or persons" shall mean one (1) or more natural persons, individuals, groups, businesses, business trusts, companies, corporations, joint ventures, joint stock companies, partnership, entities, associations, clubs or organizations composed of two (2) or more individuals (or the manager, lessee, agent, servant, officer or employee of any of them), whether engaged in business, nonprofit or any other activity.

(k) "Public officer" shall mean one who holds public office; an official or employee of the government.

(l) "Public streets" shall mean the portion of any county, state or public road or highway within the City of Modesto, which is utilized for motor vehicle or bicycle traffic, including any improved shoulder adjacent to traffic lanes.

(m) "Sidewalk" shall mean any surface in the public right-of-way intended for use by pedestrians, including walkways and pathways.

(n) "Sidewalk vendor" shall mean a person who sells food or merchandise 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, including all roaming sidewalk vendors and stationary sidewalk vendors.

(o) "Stationary sidewalk vendor" shall mean a sidewalk vendor who vends from a fixed location.

(p) "Roaming sidewalk vendor" or "Itinerant vendor" shall mean a sidewalk vendor who moves from place to place, and stops only long enough to complete a transaction.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

Every person who sells food or merchandise from sidewalks within the City shall be required to obtain a sidewalk vending permit issued by the City's neighborhood preservation unit. A sidewalk vending permit issued pursuant to this chapter is nontransferable, and shall expire automatically at the end of each calendar year and would require review renewal to continue as stated in Section 4-1.1210.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

The application for a sidewalk vending permit shall include, but not be limited to:

(a) The name, address and telephone number of the applicant.

(b) Copy of a government issued photo identification.

(c) Copy of a valid City business license pursuant to City of Modesto Municipal Code Title 6.

(d) Copy of the State of California seller's permit number issued by the California Department of Tax and Fee Administration.

(e) If vending food, proof of all required approvals and permit from Stanislaus County Department of Environmental Resources.

(f) If the sidewalk vendor is selling food, a description of the type of food to be sold, including whether such foods are prepared on site, whether such foods will require a heating element inside or on the sidewalk vending cart for food preparation, and the type of heating element, if any;

(g) For stationary sidewalk vendors, the location at which they are requesting to operate at and their proposed times and days of operations, the physical dimensions of their intended equipment displays, shade cover, table and chairs, carts, kiosk or other items. Provide a photo of the location where they are applying to vend, and a sketch of how they intend to setup their displays, shade covers, tables and chairs, carts or kiosks at the proposed location.

(h) Agreement by the applicant to indemnify and hold harmless the City, its officers and employees from any and all damages or injury to persons or property proximately caused by the act or neglect of the applicant, or by hazardous or negligent conditions maintained at the applicant's sales location.

(i) Any such further information that the City deems reasonably necessary.

(j) Each vending permit application and annual renewal shall be accompanied by a non-refundable permit fee as established by resolution of the City Council. If the City issues a permittee a vending permit, as a condition of such permit issuance, permittee further must acknowledge that the use of any sidewalk is at the sidewalk vendor's own risk, the City does not take any steps to ensure any sidewalk is safe or conducive to the vending activities, and the sidewalk vendor uses sidewalk at his or her own risk.

Exceptions.

A sidewalk vending permit shall not be required for events conducted in accordance with a special event permit issued by the City; however, a business license to operate within the City is required in the absence of a special event permit.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

In addition to fees required to be paid by this chapter, an annual permit fee established by resolution of the City Council shall be imposed for each sidewalk vendor permit issued by the City for the purposes of covering the costs of additional City services provided to administer this permitting program. The annual permit fee payment is due along with the initial sidewalk vending application and any subsequent renewals.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

Each person desiring to secure a permit shall pay a deposit which shall be in addition to any license deposit required for a business license. This cash deposit is a guarantee that all public property use fees shall be paid. The amount of the deposit shall be set by resolutions adopted by the City Council from time to time.

This deposit shall be treated in the same manner and subject to the same conditions and forfeitures as the business license deposit referred to in Section 6-1.124 of this Code or any subsequent revisions.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

Each stationary sidewalk vendor permittee shall pay a public property use fee as set by resolutions adopted by the City Council from time to time. Public property use fees are due and payable on the first day of January, the first day of April, the first day of July, and the first day of October for vending cart operation sales conducted during the preceding three-month period. The amount paid shall be based upon the adjusted gross income figure as stated on the quarterly business gross receipts tax statement (mill tax) provided to the City.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

Each sidewalk vendor permittee shall provide the City's Risk Manager with evidence of insurance coverage in the amount and form as approved by the City's Risk Manager. Such amounts shall be set forth from time to time by resolution of the City Council.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

(a) Size of the sidewalk vending cart should not exceed five feet by seven feet (5'x 7') for fixed carts, as long as, the width of vending cart shall not prohibit mobility or right-of-way in accordance with the Americans with Disabilities Act (ADA) and the vending cart shall not encroach on private property.

(b) No person shall install, use, or maintain any vending cart, kiosk, or other instrument used for sidewalk vending, that projects onto, into, or over any sidewalk or parkway when such installation, use or maintenance endangers the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such cart, kiosk other instrument associated with sidewalk vending, unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, the ingress into or the egress from any residence or place of business, or the use of poles, posts, driveways, traffic signs or signals, hydrants, mailboxes, or other objects permitted at or near said locations.

(c) No vending cart, kiosk, or other instrument used for sidewalk vending, shall be placed in a manner that the clear space for the passage of pedestrians upon the sidewalk is reduced to a width of less than five (5) feet.

(d) No sidewalk vendor shall obstruct or cause to be obstructed the passage of any sidewalk, street, avenue, alley or any other public place, by causing people to congregate at or near the place where goods, wares, food, or merchandise of any kind is being sold or offered for sale.

(e) No cords, hoses, extension cords, pipes, or other objects may lie on or across any portion of the City sidewalk.

(f) Unless otherwise specified by this chapter, sidewalk vendors in areas that are not zoned residential by this Code may operate from 8:00 a.m. until 10:00 p.m.

(g) Stationary sidewalk vendors are prohibited from operating within areas zoned exclusively residential by this Code. Only roaming sidewalk vendors may operate in areas zoned exclusively residential by this Code, and may only vend during the hours between 8:00 a.m. and 5:00 p.m.

(h) Sidewalk vendors operating adjacent to a City park may only operate during posted park operational hours. No vending is allowed when a park is closed.

(i) Unless otherwise specified by this chapter, stationary sidewalk vendors in a park shall only be permitted for a location that:

(1) Is on a paved surface of at least twelve (12) feet in width; and provides at least a seven (7) foot width path of clearance for pedestrian travel and recreational activities;

(2) Is at least twenty five (25) feet away from any entrance or exit to the park;

(3) Will not interfere with the public's use and enjoyment of the natural resources of the park; and

(4) Will not interfere with recreational opportunities within a park.

(j) Sidewalk vendors shall ensure that they maintain at least a five (5) foot width path of clearance for pedestrian travel. The five (5) foot width path of clearance must be free of any obstacles that would impede or reduce the required width of clearance.

(k) Sidewalk vendors shall be equipped with trash receptacles large enough to ensure proper disposal of trash generated by the vending operations. Vendors may not dispose of such trash in City street or park trash cans intended for use by the general public.

(l) Sidewalk vendors shall pick up all refuse generated by his or her sidewalk vending operations within a ten (10) foot radius of the vendor's cart before such cart is moved.

(m) Sidewalk vendors shall not discharge any trash or liquid (e.g., water, grease, oil, etc.) onto or into City streets, storm drains, catch basins, sewer facilities or public trash cans.

(n) Sidewalk vendors shall not leave their sidewalk vending operation unattended.

(o) Sidewalk vendors must comply with the City's noise ordinance, which may be amended from time to time.

(p) Sidewalk vending activities shall comply with the Americans with Disabilities Act, as it may be amended from time to time.

(q) All required permits, including the sidewalk vending permit, County Environmental Health inspection sticker, and the business license shall be displayed conspicuously at all times on the vending cart, kiosk, or other instrument used for sidewalk vending, or the sidewalk vendor's person.

(r) Sidewalk vendors shall obtain and maintain insurance coverage in the amounts as required by the City's Risk Manager for the duration of the permit.

(s) Sidewalk vendors shall not sell unsanitary or unsafe, dangerous, or harmful food, beverage, or merchandise. Unsafe and dangerous merchandise includes, but is not limited to, archery equipment, knives, sling shots, or any objects that appear to be weapons including toys.

(t) Sidewalk vendors shall not sell alcohol, marijuana, adult-oriented material, tobacco products, products that contain nicotine or any product used to smoke/vape nicotine or marijuana.

(u) Sidewalk vendors using equipment that produces an open flame shall first obtain a permit from the Fire Prevention Division prior to use.

(v) Sidewalk vendors shall not use charcoal or wood burning elements.

(w) Sidewalk vendors shall not use an electrical outlet or power source that is owned by any public entity or another person other than the sidewalk vendor.

(x) Sidewalk vendors shall not use any type of portable generators including but not limited to emergency, inverter, recreational or processional generators.

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

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

(aa) Nothing in these rules authorizes vending of personal services including, but not limited to, boot camps, massage services, yoga, dog training, animal rides, petting zoos, or sports/fitness classes.

(bb) Advertising shall be limited to those advertisements attached to the vendor's kiosk. No A-frame signs, banners or other detached advertising allowed.

(cc) Vendors are to show state issued identification upon request to any police officer, peace officer, public officer or code enforcement officer for the purpose of enforcing any portion of this article.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

Sidewalk vending in the following locations is not permitted:

(a) In or within one thousand (1,000) feet of an area designated for a temporary use permit issued by the City for temporary use of, or encroachment on, the sidewalk or other public area, including, but not limited to, an encroachment permit, special event permit, or temporary event permit, for purposes including, but not limited to, filming, parades, events, or outdoor concerts. A prohibition of sidewalk vending pursuant to this subsection shall only be effective for the limited duration of the temporary special permit.

(b) In or within five hundred (500) feet of the immediate vicinity of a permitted certified farmers' market or a permitted swap meet during the limited operating hours of that certified farmers' market or swap meet.

(c) In or within five hundred (500) feet of a downtown transportation center.

(d) In or within five hundred (500) feet of any school site, camp, youth activity center or senior center.

(e) In or within, five hundred (500) feet of any City of Modesto Parks' building, recreation center, bathroom, structure, or playground. Or in or within any park deeded to the City of Modesto with restriction on commercial activity, including but limited to:

(1) In or within five hundred (500) feet of John Thurman Field;

(2) In or within five hundred (500) feet of the Mary Grogan Soccer Complex;

(3) In or within five hundred (500) feet of any golf course;

(4) In or within five hundred (500) feet of the Modesto Centre Plaza;

(5) In or within five hundred (500) feet of the Gallo Center for the Arts.

(f) Within five hundred (500) feet of a freeway or highway entrance or exit.

(g) On or within any area immediately adjacent to a public street curb that has been designated by the City as a yellow, white, blue, or red zone.

(h) On or within any dirt path, trail, or landscape area containing lawn, mulch, or ornamental plantings.

(i) On or within any parking stalls or designated parking areas.

(j) On or within any City maintenance or storage yards.

(k) Within three hundred (300) feet of a like-kind permanent establishment, during that establishment's operating hours.

(l) Within one hundred (100) feet of any other vendor operating.

(m) Within fifty (50) feet of any designated "no parking" zone

(n) Within twenty-five (25) feet of any fountain, statue, monument, or art installation.

(o) Within twenty-five (25) feet of an automated teller machine (ATM).

(p) Within (25) feet of any intersection or alley entrance not controlled by a traffic signal.

(q) Within fifteen (15) feet of any driveway or entrance to a parking lot or shopping center, or in a manner that impedes or blocks ingress and egress access to a parking lot or shopping center.

(r) Within fifteen (15) feet of any bus stop, bus bench, bus shelter, street corner, or marked pedestrian crosswalk.

(s) Within any portion of a tree well or planting strip.

(t) No vending conveyance, stand, or pushcart shall touch, lean against, or be affixed to any lamp post, parking meter, picnic table, fire hydrant, tree plant, bench, or trash can.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

A current, legible copy of all permits, licenses, certificates, or other documents required for licensing or permitting of the vending cart shall be maintained in the vending cart, while in operation, for inspection by any person representing any office having permit approving authority, including but not limited to, police officer, peace officer, public officer or code enforcement officer.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

A permit that is not revoked may be renewed annually for stationary and roaming sidewalk vendors. Renewal applications will be available after November 1st of each year and must be completed by December 15 of the same year, accompanied by a payment of the annul permit fee. Stationary sidewalk vendors may be renewed annually for up to four (4) consecutive years beyond the initial application year. Any designated stationary location for which a completed application and payment has not been received by December 15 shall be made available for selection by any interested individual after January 1 of the following year.

The applicant must pay all previous administrative fines, completed all community service or completed any other alternative disposition associated in any way with a previous violation of this division.

An application to renew a license issued pursuant to this chapter may be denied upon the grounds set forth in Section 4-1.1211.

If a revocation hearing has been scheduled to consider, or is presently considering, any permit, the renewal process of that permit shall not commence nor continue until such hearing is concluded. Because it is no longer a valid instrument, a revoked permit cannot be renewed.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

An application for a sidewalk vending permit may be denied for the following reason:

(a) The applicant does not possess all required state and local permits or licenses required for the proposed vending activity.

(b) The applicant has knowingly made a false, misleading, or fraudulent statement of material fact in the permit application.

(c) The proposed stationary vending location does not allow for maintaining an unobstructed pedestrian access route, as specified in Section 4-1.1208.

(d) The applicant has had a prior permit/license revoked pursuant to this chapter within the preceding twenty-four (24) months.

(e) The applicant has received three (3) or more administrative citations for violations of this Chapter within the preceding twenty-four (24) months.

(f) For public safety purposes, if the applicant is required to register under the provisions of California Penal Code Section 290 (or equivalent section any other State.)

Sidewalk vending permit may be revoked for the following reasons:

(1) Repeated failure of the applicant to comply with the regulations set forth in this division.

(2) Violations of other local, state, or federal laws while operating as a sidewalk vendor including through the use of any vending equipment for the commission of such violations that demonstrate endangerment of public health or safety.

(3) Failure of the applicant to promptly notify the City Manager or designee of any material changes to the facts provided in a vending permit application subsequent to the issuance of a vending permit.

(4) The selling and/or unlawfully distribution of a controlled substance within any distance of their designated location. The neighborhood preservation unit or designee may revoke without a hearing any permit for a designated location if any permittee or operator is convicted of such sale or distribution. Prima facie evidence of violation shall be the court record. A permittee shall be notified in writing if the permit is revoked.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

Vending without a valid sidewalk vendor permit shall be punishable by the following administrative fines:

All other violations of this chapter shall be punishable by the following administrative fines:

Violation Ability to Pay Determinations

When assessing an administrative fine under this chapter, the City shall take into consideration a person's ability to pay the fine. Any fine issued under this chapter will be accompanied by a notice of and instruction regarding a person's right to request an ability-to-pay determination. A 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 collection program.

If a person is receiving public benefits under California Government Code Section 68632(a), or has a monthly income which is one hundred twenty-five (125) percent or less than the current poverty guidelines updated periodically in the Federal Register by the United States Department of Health and Human Services, the person's administrative fine is limited to twenty (20) percent of the amount assessed. The City may also take the following actions:

(a) Allow the person to complete community service in lieu of paying the total administrative fine; or

(b) Waive the administrative fine; or

(c) Offer an alternative disposition.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

(a) In addition to the administrative fines taken pursuant to [Section] 4-1.1212 above, any enforcement official may, upon an individual's fourth or greater violation of this division, impound vending equipment and any perishable or non-perishable goods therein.

(b) Any owner of impounded vending equipment or any perishable or nonperishable goods may, within twenty (20) days, request an administrative hearing before a hearing office appointed by the City.

(c) By 5:00 p.m. on the next business day following impoundment, a violator will be contacted regarding the details given in the impoundment citation. The equipment will then be released to the owner provided that proper proof of ownership is presented, and the City receives payment in full of all administrative costs incurred as a result of the violation. Any unclaimed items will be considered abandoned and forfeited to the City after ninety (90) days following impoundment.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

(a) Revocation of a vending permit shall be served in writing no less than thirty (30) calendar days before revocation to the address listed on the initial application or to any subsequent address provided to the City by the permittee.

(b) A permittee may appeal such decision to the Council by filing with the City Clerk a written notice of appeal within twenty (20) calendar days after receipt of the notice of denial or revocation. The City Manager or designee shall review and render a decision on the appeal within ninety (90) calendar days. The decision made by the City Manager or designee shall be final.

(c) In the event a vending permit is revoked, an application to reestablish any vending permit pursuant to this division shall not be accepted for a minimum period of twenty-four (24) months from the date the prior vending permit was revoked.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this article or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this article or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one (1) or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional or invalid or ineffective.

(Added by Ord. No. 3724-C.S., § 1, effective 12-10-20)