Montclair Municipal Code Ch. 9.29 Sidewalk Vending

The City finds that the vending of prepared or pre-packaged foods, goods, and/or wares at semi-permanent locations on public sidewalks and rights-of-way may pose unsafe conditions and special dangers to the public health, safety, and welfare of residents and visitors. The purpose of this chapter is to implement regulations on both roaming and stationary sidewalk vending that protect the public health, safety, and welfare of the community while complying with the requirements of general state law, as amended from time to time, to promote safe vending practices, prevent safety, traffic, and health hazards, and preserve the public peace, safety, and welfare of the community.

(Ord. No. 18-978-U, § 5, 12-17-18)

For purposes of this Chapter, the following definitions apply:

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

City means the City of Montclair.

Park means a public park owned by the City.

Pathway means a paved path or walkway owned by the City or other public entity that is specifically designed for pedestrian travel, other than a sidewalk.

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

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

Sidewalk means that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation specifically designed for pedestrian travel that is owned by the City or other public entity.

Sidewalk vendor or vending means a person who sells, offers to sell, operates, engages in or carries on a food or merchandise vending business from a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other non-motorized conveyance, or from one's person, upon a public sidewalk or other public pedestrian path.

Sidewalk vending activities or sidewalk vendor 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, placement, or maintenance of any sidewalk vendor receptacles.

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

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

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

Temporary special event means a temporary outdoor celebration, ceremony, reception, function, or festival, involving a gathering of people which occurs only periodically that is conducted pursuant to Chapter 11.68 of the Montclair Municipal Code or that is conducted by a neighborhood, City, or school on public property, or by a church, or civic group on privately owned property where all other appropriate permits are obtained, if applicable, such as encroachment permits, County Health Department permits, and/or a California seller's permit with the sales tax number issued by the California Department of Tax and Fee Administration to the vendor. The temporary event shall be limited to no more than three consecutive days.

(Ord. No. 18-978-U, § 5, 12-17-18)

A. In order to better serve the public welfare, all sidewalk vendors shall, first apply for and then obtain a sidewalk vending permit from the Finance Director or Finance Director's designee prior to engaging in any sidewalk vending activities. Permits are required for the purpose of determining that an overconcentration of vendors will not occur in a location that may lead to unsafe vending practices, safety concerns, and traffic and sidewalk congestion and for matters of public health to determine where specific vendors selling food goods may be located in the event of reports of food contamination.

A written application for a sidewalk vendor permit shall be filed with the Finance Director, or Finance's designee, on a form provided by the City.

The following information shall be required:

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

2. If the vendor is an agent of an individual, company, partnership, or corporation, the name and business address of the principal who will be in charge of any roaming or stationery sidewalk vendors, sidewalk vending activity and/or be responsible for the persons(s) working at the sidewalk vending receptacle;

3. The name, address, and telephone number of all persons that will be employed as roaming or stationery 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 and, if roaming, the intended path of travel;

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

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

8. The dimensions of the sidewalk vendor's sidewalk vending receptacle(s) including a picture of each sidewalk vending receptacle operating under the permit and any signs that will be affixed thereto;

9. If the sidewalk vendor is selling merchandise, a description of the merchandise/goods to be offered for sale or exchange;

10. If the sidewalk is selling food, a description of the type of food to be sold, where such foods are prepared on site, whether such foods will require a heating element inside or on the sidewalk vending receptacle for food preparation, and the type of heating element, if any;

11. If the vendor is preparing or selling food, a copy of the County Health Department permit issued to the vendor;

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

13. A copy of the vendors Social Security card with the number; or

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

A copy of a valid state identification issued to the vendor;

14. If the vendor proposes to be a stationary sidewalk vendor, an encroachment permit pursuant to Section 9.16.040 of the City of Montclair Municipal Code which must be obtained from the Public Works Department;

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

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

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 use of public property is at the sidewalk vendor's 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 their own risk;

19. An acknowledgement that the sidewalk vendor will obtain and maintain throughout the duration of the any permit issued under this Chapter, any insurance required by the City's Risk Manager in consultation with advice from the City's insurance carriers;

20. Any other relevant information required by the Finance Director, or the Finance Director's designee.

B. Prior to the issuance of a sidewalk vendor permit, the applicant shall obtain and shall cause to be filed with the Executive Director of Public Safety/Chief of Police or his or her designee a LiveScan background check administered through the Police Department and conducted by the California Department of Justice within the previous six months of the application date.

The vendor and any employee of a person proposed to conduct sidewalk vending from a sidewalk vending receptacle must obtain a LiveScan background check prior to conducting any sidewalk vending activities.

C. At the time the application or renewal application is filed, the applicant shall pay the permit processing fee established by separate resolution of the City Council. Such fee is necessary to recover service costs, and to document the location(s) and number of street vendors to prevent an overconcentration of vendors in parks, streets and at school locations and for other matters of public safety and welfare.

(Ord. No. 18-978-U, § 5, 12-17-18)

A. Upon acceptance of a properly completed and filed sidewalk vendor permit application filed with the Finance Director and receipt of an acceptable LiveScan report issued by the Department of Justice, the Executive Director of Public Safety/Police Chief or his or her designee shall conduct a preliminary investigation to determine compliance with this chapter and shall make such determination within no more than 60 days of acceptance to approve or deny the application. The Executive Director of Public Safety/Police Chief or his or her designee shall provide the applicant with written notice of his or her decision to the address indicated in the application.

B. The Executive Director of Public Safety/Police Chief or his or her designee may deny an application for a permit if he or she makes any of the following findings:

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

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

3. The applicant does not have either a valid social security card, valid state identification; or valid individual taxpayer identification number.

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

5. The applicant is required to register under the provisions of California Penal Code Section 290.

6. Within three years of the date of the application, the applicant has been convicted in a court of competent jurisdiction or pled nolo contendere to any felony offense involving the sale of a controlled substance specified in California Health and Safety Code Sections 11054, 11055, 11056, 11057, or 11058, or at the time of application is on probation or parole for any offenses set forth in this section for an offense that was committed within three years of the date of the application.

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

8. It is determined that the applicant has been convicted of a crime in the last three years involving the commission of any act involving dishonesty, fraud or deceit with the intent to benefit himself or another pursuant to Section 475 of the California Business and Professions Code.

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

D. If the Executive Director of Public Safety/Police Chief or his or her designee approves the applicant's permit, he or she shall endorse his or her approval on the application and shall, upon payment of the prescribed fee, deliver the permit to the applicant.

E. During all hours of vending, each individual engaged in sidewalk vending shall wear an identification badge issued by the Executive Director of Public Safety/Police Chief or his or her designee. The identification badge shall be worn approximately chest-high on the vendor's outermost garment, in a location visible to customers and City inspectors. The sidewalk vendor identification badge shall be maintained in good and readable condition at all times.

F. In order to obtain an identification badge, each individual engaged in sidewalk vending must have their photograph taken by the Police Department to be used for the issuance of the identification badge. A nonrefundable and non-appealable fee, set by resolution of the City Council, shall be paid for the issuance of a sidewalk vendor identification badge and replacement of a lost, stolen, or damaged sidewalk vendor identification badge.

G. Exemptions. A sidewalk vending permit shall not be required for the following activities:

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

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

3. Events, including City-sponsored and/or City-approved events and other events permitted pursuant to a lawfully issued temporary event permit including but not limited to a certified farmers' market, swap meet, street fairs, outdoor concerts, sport league opening day, and business sidewalk sales.

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

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

(Ord. No. 18-978-U, § 5, 12-17-18)

A. Stationary sidewalk vendors shall be prohibited from operating or establishing in any residential zone of the City, including R1-Single Family Residential, R2-Two Family Residential, R3-Multiple Family Residential, and any area within in a Specific Plan zoning designation that contains residential land use.

B. In addition, the City Council finds that there are unique design and access limitation on certain public properties containing internal pedestrian paths that prevent stationary sidewalk vendors from operating in them without detrimentally affecting the public health, safety, and welfare. Among these are areas with high pedestrian traffic and use characteristics where stationary sidewalk vending is incompatible with high pedestrian traffic volumes, while still leaving sufficient access to allow disabled and emergency personnel to access all portions of these facilities. These facilities include the Civic Center and the Montclair Transcenter. The Civic Center complex is located at 5111 Benito Street and the Montclair Transcenter is approximately 19 acres located on the Richton Street and Monte Vista Avenue. The boundaries of this area are shown in the attached Exhibit A.

C. Stationary sidewalk vendors may operate in non-residential zones of the City, including mixed use zones that do not contain residential dwelling units, provided they meet the following:

1. The sidewalk vendor is duly licensed and meets all requirements of Section 9.29.030;

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

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

4. 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;

5. 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, signs, mailboxes, traffic signals, fire hydrants, benches, bus shelters, newsstands, trashcans, or traffic barriers;

6. Sidewalk vendor may not store the vendor receptacle on public property and sidewalk vendor must remove sidewalk vending receptacle from the sidewalk at the close of business each day;

7. The sidewalk vendor must maintain the vending area in a clean, orderly, and sanitary condition;

8. Sidewalk vendors shall not leave their sidewalk vending receptacle unattended to solicit business for their sidewalk vending activities;

9. For the safety, health, and sanitation of the public, vendor may not offer, sell, use or vend any live animal(s);

10. Sidewalk vendors shall not engage in the sale of alcohol, cannabis or cannabis products, adult oriented material, tobacco products, products that contain nicotine or products used to smoke/vape nicotine or fireworks products pursuant to Sections 11.11.050 and 6.14.020;

11. The sidewalk vendor shall not block entrances to buildings, driveways, parking spaces, or building windows;

12. No vending shall occur within 20 feet of a fire hydrant, fire escape, mailbox, bus stop, any curb designated as white, yellow, green, blue, red, or a bus zone, a handicapped parking space, or access ramp, automated teller machine, entry or exit to a building, trash receptacle, bike rack, bench, public, or private driveway, or other item of public use;

13. No vending shall occur within 30 feet of any street intersection, alley or sidewalk to prevent visual obstructions at street, alley and freeway intersections;

14. Vendors must maintain a separation of 25 feet from the next street vendor to prevent sidewalk congestion and allow room for queuing;

15. Vending must occur on the paved surface of the sidewalk; vendors may not stand, display, or place vending receptacle within any landscaped, or unpaved surface for the safety of the vendor and public walking or standing on an uneven surface and to prevent damage to landscaping within parkways, right-of-ways or other property;

16. Vending transactions may not occur with a customer in an operating vehicle or in a traffic lane. Vendor may not distribute goods or food to a customer from the face of the curb into parked vehicles;

17. No tables, chairs, fences, shade structures, umbrellas, other site furniture, rugs, towels, fabric of any kind laid directly on the sidewalk for the display of goods, or any freestanding signs shall be permitted in conjunction with the vendors vending activities;

18. No vendor may use electronic devices, audio equipment, loudspeakers for the purpose of amplifying sound, selling by public outcry or yelling to promote sales pursuant to Section 6.12.100;

19. Sidewalk vendor shall not advertise any product or service that is not related to the food or merchandise being offered for immediate sale;

20. Sidewalk vendor may not block or impede the path of the person(s) being offered food or merchandise to purchase;

21. The vendor shall not attach or use any water lines, electrical lines, or gas lines during vending operations;

22. Exterior storage or display of refuse, equipment, materials, goods, wares, or merchandise associated with the vendor is prohibited;

23. For public safety and visibility, a vending receptacle and any attachments thereto, including umbrellas or shade canopies, shall not exceed an overall height of five feet including depth of four feet and length of five feet unless a variance to these standards is necessary pursuant to regulations of the County of San Bernardino Health Department and may not include attachments such as balloons, streamers, ribbons, pinwheels, flags, and other visual marketing aids;

24. All signage and advertising related in any way to the sidewalk vendor shall be attached to the sidewalk vending receptacle, if any, or the sidewalk vendor's person. Sidewalk vendors shall not use any electrical, flashing, wind powered or animated signage;

25. An open flame shall not be used on or within any sidewalk vending receptacle and no vending receptacle shall contain or use any explosive or hazardous material(s);

26. No vendor shall display or sell merchandise from the hood, trunk, bed, hatchback, or seats of a vehicle parked adjacent to the public right-of-way or in a parking lot;

27. No vending shall occur within 100 feet of a certified farmers' market, a swap meet, or an event held pursuant to a temporary special event permit to limit vehicular and pedestrian congestion from an overconcentration of vendors in a certified farmers' market area or an area where a temporary special event is occurring and to eliminate potential consumer confusion regarding the type and purpose of goods sold;

28. No vending shall occur within 100 feet of the Civic Center facilities, Montclair Transcenter, a fire station, police station, private or public school, place of worship, or child day-care facility;

29. Sidewalk vending shall not occur on any pathway dedicated for public use as a trail intended for recreational use of bicycles and other pedestrian-related forms of recreation;

30. No sidewalk vending receptacle may access a sidewalk or pathway by use of a motorized or animal-drawn vehicle rolling or driving over a curb, delineator, or through a parkway.

(Ord. No. 18-978-U, § 5, 12-17-18)

A. Sidewalk vending of food or merchandise by roaming or stationary vendors shall be prohibited in any City park with a concession stand operated by a vendor under exclusive contract with the City selling similar food or merchandise, in a park where a temporary special event is occurring or in an area occupied by a certified farmer's market.

B. Sidewalk vending by roaming or stationary vendors shall not locate or stop a sidewalk vending receptacle within 100 feet of any public picnic area, playground area, playground equipment, sports field or sports court, skateboard park, shade structure, or gazebo.

C. Subject to Section 9.29.050(A), sidewalk vendors may operate in City Parks provided they meet the following:

1. The sidewalk vendor is duly licensed and meets all requirements of Section 9.29.030;

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

3. The sidewalk vendors may conduct business in parks no earlier than 8:00 a.m. and must cease operation one hour prior to the close of the park;

4. 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;

5. Sidewalk vending receptacles shall not touch, lean against, or be affixed at any time to any building or structure including, but not limited to lamp posts, signs, fire hydrants, benches, shade structures, gazebos, or trashcans;

6. Sidewalk vendor may not store the vendor receptacle in a public park and sidewalk vendor must remove sidewalk vending receptacle from the park at the close of business each day;

7. The sidewalk vendor must maintain the vending area in a clean, orderly, and sanitary condition;

8. Sidewalk vendors shall not leave their sidewalk vending receptacle unattended to solicit business for their sidewalk vending activities;

9. For the safety, health, and sanitation of the public, vendor may not offer, sell, use, or vend any live animal(s);

10. Sidewalk vendors shall not engage in the sale of alcohol, cannabis or cannabis products, adult oriented material, tobacco products, products that contain nicotine or products used to smoke/vape nicotine, or fireworks products pursuant to Sections 11.11.050 and 6.14.020;

11. The sidewalk vendor location does not block entrances to buildings, driveways, parking spaces, building windows and does not block access to any park equipment, playing field, or park amenity;

12. No vending shall occur within 20 feet of a fire hydrant, any curb designated as white, yellow, green, blue, red, a handicapped parking space or access ramp, entry or exit to a building, trash receptacle, bike rack, bench or driveway or other item of public use;

13. Vendors must maintain a separation of 25 feet from the next street vendor to prevent sidewalk congestion and allow room for queuing;

14. Vending must occur on the paved surface of the sidewalk; vendors may not stand, display, or place sidewalk vending receptacle within any landscaped or unpaved surface for the safety of the vendor and public walking or standing on an uneven surface and to prevent damage to park landscaping;

15. No tables, chairs, fences, shade structures, umbrellas, other site furniture, rugs, towels, fabric of any kind laid directly on the sidewalk for the display of goods or any freestanding signs shall be permitted in conjunction with the vendors vending activities;

16. No vendor may use electronic devices, audio equipment, loudspeakers for the purpose of amplifying sound, selling by public outcry, or yelling to promote sales pursuant to Section 6.12.100;

17. Sidewalk vendor shall not advertise any product or service that is not related to the food or merchandise being offered for immediate sale;

18. Sidewalk vendor may not block or impede the path of the person(s) being offered food or merchandise to purchase;

19. The vendor shall not attach or use any water lines, electrical lines, or gas lines during vending operations;

20. Exterior storage or display of refuse, equipment, materials, goods, wares, or merchandise associated with the vendor is prohibited;

21. For public safety and visibility, a vending receptacle and any attachments thereto, including umbrellas and shade canopies, shall not exceed an overall height of five feet including width of four feet and length of five feet unless a variance to these standards is necessary pursuant to regulations of the County of San Bernardino Health Department and may not include attachments such as balloons, streamers, ribbons, pinwheels, flags, and other visual marketing aids;

22. All signage and advertising related in any way to the sidewalk vendor shall be attached to the sidewalk vending receptacle, if any, or the sidewalk vendor's person. Sidewalk vendors shall not use any electrical, flashing, wind powered, human or animated signage;

23. An open flame shall not be used on or within any sidewalk vending receptacle and no vending receptacle shall contain or use any explosive or hazardous material(s); and

24. No vending shall occur within the immediate vicinity of an event held pursuant to a temporary special event permit or a certified farmers' market.

(Ord. No. 18-978-U, § 5, 12-17-18)

A. Roaming sidewalk vendors shall meet the following:

1. The sidewalk vendor is duly licensed and meets all requirements of section 9.29.030;

2. Sidewalk vending hours for residential zones shall be conducted between the hours of 8:00 a.m. and no later than 30 minutes after sundown;

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

4. 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;

5. Sidewalk vendor may not store the vendor receptacle on public property and sidewalk vendor must remove sidewalk vending receptacle from the sidewalk at the close of business each day;

6. When conducting a transaction, the sidewalk vendor must leave the area of the transaction in a clean, orderly, and sanitary condition;

7. Sidewalk vendors shall not leave their sidewalk vending receptacle unattended to solicit business for their sidewalk vending activities;

8. For the safety, health and sanitation of the public, vendor may not offer, sell, use or vend any live animal(s);

9. Sidewalk vendors shall not engage in the sale of alcohol, cannabis or cannabis products, adult oriented material, tobacco products, products that contain nicotine or products used to smoke/vape nicotine or fireworks products pursuant to Sections 11.11.050 and 6.14.020;

10. A sidewalk vendor shall not block an entrance to a building, driveway, parking space, or building window when stopped to conduct a transaction;

11. No vendor shall conduct a transaction within 20 feet of a fire hydrant, fire escape, mailbox, bus stop, any curb designated as white, yellow, green, blue, red, handicapped parking space, or access ramp, automated teller machine, entry or exit to a building, trash receptacle, bike rack, bus stop, bench or public or private driveway or other item of public use when stopped to conduct a transaction;

12. No vendor shall conduct a transaction within 30 feet of any street corner or alley to prevent visual obstructions at street, alley, and freeway intersections;

13. When stopped to conduct a transaction, vending must occur on the paved surface of the sidewalk, unless no sidewalk exists. When no walkway exists, vendor may conduct the transaction within a paved or unpaved public right-of-way area out of the way of oncoming traffic; vendors may not conduct a transaction, stand, display, or place a vending receptacle in a landscaped area within a parkways, a right-of-way, or other private or public property;

14. Vending transactions may not occur with a customer in an operating vehicle or in a traffic lane. Vendor may not distribute goods or food to a customer from the face of the curb into parked vehicles;

15. No vendor may use electronic devices, audio equipment, loudspeakers for the purpose of amplifying sound, selling by public outcry or yelling to promote sales pursuant to Section 6.12.100;

16. Sidewalk vendor shall not advertise any product or service that is not related to the food or merchandise being offered for immediate sale;

17. Sidewalk vendor may not block or impede the path of the person(s) being offered food or merchandise to purchase;

18. Exterior storage or display of refuse, equipment, materials, goods, wares, or merchandise associated with the vendor is prohibited;

19. For public safety and visibility, a vending receptacle and any attachments thereto, including umbrellas and shade canopies, shall not exceed an overall height of five feet including width of four feet and length of five feet unless a variance to these standards is necessary pursuant to regulations of the County of San Bernardino Health Department and may not include attachments such as balloons, streamers, ribbons, pinwheels, flags, and other visual marketing aids;

20. All signage and advertising related in any way to the sidewalk vendor shall be attached to the sidewalk vending receptacle, if any, or the sidewalk vendor's person. Sidewalk vendors shall not use any electrical, flashing, wind powered or animated signage;

21. An open flame shall not be used on or within any sidewalk vending receptacle and no vending receptacle shall contain or use any explosive or hazardous material(s);

22. No vending shall occur within 100 feet of a certified farmers' market, a swap meet, or an event held pursuant to a temporary special event permit to limit vehicular and pedestrian congestion from an overconcentration of vendors in a certified farmers' market area, swap meet, or an area where a temporary special event is occurring and to eliminate potential consumer confusion regarding the type and purpose of goods sold;

23. No vending shall occur within 100 feet of the Civic Center facilities, a fire station, police station, private or public school, place of worship, or child daycare facility;

24. Sidewalk vending shall not occur on any pathway dedicated for public use as a trail intended for recreational use of bicycles and other pedestrian-related forms of recreation.

(Ord. No. 18-978-U, § 5, 12-17-18)

A. For the protection and safety of the public, a sidewalk vendor permit issued under this chapter may be suspended or rescinded by the Executive Director of Public Safety/Police Chief or his or her designee after four or more violations of this chapter in accordance with Section 9.29.100 of this chapter, at their discretion, or for any of the following causes:

1. Fraud or misrepresentation in the course of vending;

2. Fraud or misrepresentation in the application for the permit; or

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

B. Notice of the suspension or rescission of a sidewalk vendor permit issued under chapter shall be mailed, postage prepaid, to the holder of the sidewalk vendor permit at the address shown on the permit application form.

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

(Ord. No. 18-978-U, § 5, 12-17-18)

In the event that any applicant or permittee desires to appeal from any order, rescission, or other ruling of the Executive Director of Public Safety/Police Chief or his or her designee made under the provisions of this chapter, such applicant or any other person aggrieved shall have the right to appeal such action or decision to the City Manager within 15 days after the notice of the action or decision has been mailed to the person's address as shown on the permit application. An appeal shall be taken by filing with the Office of the City Manager a written appeal statement setting forth the grounds for the appeal, along with the City's appeal fee, which shall be established by resolution of the City Council. The filing of the appeal shall stay the enforcement of any decision suspending or rescinding the permit. The Executive Director of Public Safety/Chief of Police or his or her designee shall transmit the written statement to the City Manager within 10 days of its filing and payment of the appeal fee, and the City Manager shall set a time and place for a hearing on appeal. A hearing shall be set not later than 60 days from the date of filing of the applicant's written appeal statement with the police department. Notice of the time and place of the hearing shall be given to the appellant in the same manner as provided for the mailing of notice of suspension or rescission at least five days prior to the date set for the hearing. At the hearing, the permittee and the City shall be entitled to legal representation and may present relevant evidence, testify under oath, and call witnesses who shall testify under oath. The City Manager shall not be bound by the traditional rules of evidence in a hearing, except that hearsay evidence may not be the sole basis for the decision of the City Manager. The City Manager may continue the hearing as deemed necessary. The decision of the City Manager, or his or her designee, on the appeal shall be final and binding on all parties concerned.

(Ord. No. 18-978-U, § 5, 12-17-18)

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

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

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

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

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

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

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

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

C. If an individual is subject to subsection B, set forth above, for vending without a sidewalk vending permit, upon the individual providing proof of a valid permit issued by the City, the administrative fines set forth in this chapter shall be reduced to the administrative fines set forth in subsection A, respectively.

D. The proceeds of any administrative fines assessed pursuant to this chapter shall be deposited in the treasury of the City.

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

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

G. When assessing an administrative fine pursuant to this chapter, the adjudicator shall take into consideration the person's ability to pay the fine. The City shall provide the person with notice of his or her right to request an ability-to-pay determination and shall make available instructions or other materials for requesting an ability-to-pay determination. The person may request an ability-to-pay determination at adjudication or while the judgment remains unpaid, including when a case is delinquent or has been referred to a comprehensive collection program.

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

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

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

(Ord. No. 18-978-U, § 5, 12-17-18)