Port Hueneme Municipal Code Ch. 9 Sidewalk Vending

Footnotes:

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Editor's note— Ord. No. 754, § 3, adopted April 15, 2019, set out provisions intended for use as Ch. 6, §§ 5601—5612. Inasmuch as there were already provisions so designated, said ordinance has been codified herein as Ch. 9, §§ 5641—5652, at the discretion of the editor.

The purpose of this Chapter is to establish a sidewalk vending program and sidewalk vending licensing scheme within the City while maintaining objective regulations that are directly related to public health, safety, and welfare.

(Ord. No. 754, § 3, 4-15-19)

The following definitions apply to this Chapter:

"Business Tax Certificate" means a general license issued by the City to conduct business within the territorial jurisdiction of the City.

"Cart" means any pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other nonmotorized conveyance, and includes a stationary cart or a roaming cart.

"California Retail Food Code" means Part 7 of Division 104 of the California Health and Safety Code (commencing at Section 113700).

"Department" means the City's Finance Department.

"Director" means the Director of the Department.

"Food" means any type of edible substance or beverage.

"Goods" or "merchandise" means any item that is not food.

"Health Department" means the Ventura County Resource Management Agency Environmental Health Division.

"Median" means any area between opposing lanes of traffic, excluding turn lanes, designed to separate traffic flows on any street or highway. Medians act as a physical barrier or visual separator to improve safety and manage traffic flow, and can be either raised, paved, or landscaped.

"Person" or "persons" means one (1) or more natural persons, individuals, groups, businesses, business trusts, companies, joint ventures, joint stock companies, partnerships, 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.

"Roaming sidewalk vendor" has the same meaning as set forth in Government Code Section 51036(b), and includes a sidewalk vendor who moves from place to place and stops only to complete a transaction.

"Roaming vending cart" means a pushcart, pedal-driven cart, wagon, or other nonmotorized conveyance used by a roaming sidewalk vendor to be moved from place to place with stops only to complete a transaction.

"Rules and regulations" means the rules and regulations, if any, established by the Director and adopted by the Council resolution, concerning the sidewalk vending program that are intended to clarify and aid in the administration and enforcement of this Chapter.

"Sidewalk" means any paved surface in the public right-of-way provided for the use of pedestrians and includes pedestrian paths.

"Sidewalk vending program" means the program established by this Chapter that is applicable to sidewalk vending related activities.

"Sidewalk vendor" has the same meaning as set forth in Government Code Section 51036(a), and includes a person who sells food or merchandise from a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other nonmotorized conveyance, or from one's own person, upon a public sidewalk or other pedestrian path.

"State seller's permit" means a permit issued by the California Department of Tax and Fee Administration.

"Stationary sidewalk vendor" has the same meaning as set forth in Government Code Section 51036(c), and includes a sidewalk vendor who vends from a fixed location.

"Stationary vending cart" means a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other nonmotorized conveyance that is intended to be operated from a fixed location by a stationary sidewalk vendor.

"Vend" means to sell, offer for sale, expose or display for sale, solicit offers to purchase, barter, or exchange anything of value, even if the transaction is characterized as a donation.

"Vending license" means a license issued by the City to vend food or merchandise within the City in accordance with this Chapter.

"Ventura County Environmental Health Division Permit" means any and all licenses, permits, certifications, and courses required and issued by the Environmental Health Division of the County of Ventura to vend food within the City in accordance with this Chapter.

(Ord. No. 754, § 3, 4-15-19; Ord. No. 831, § 3, 5-4-26)

A. The Department is authorized to issue sidewalk vending licenses in accordance with this Chapter.

B. The Director is authorized to develop and enforce the rules and regulations regarding the licensing, permitting, and operation of sidewalk vending in accordance with this Chapter.

(Ord. No. 754, § 3, 4-15-19)

No sidewalk vendor may vend or operate anywhere within the City without first obtaining a vending license. Sidewalk vendors must comply with the terms and conditions set forth in the vending license and within this Chapter.

(Ord. No. 754, § 3, 4-15-19)

A. To obtain or renew a vending license, a sidewalk vendor must provide the following as part of the application:

1. Valid identification, such as a State of California driver's license or identification number, an individual taxpayer identification number, or a municipal identification number, or any other government-issued identification card.

2. The name, address, and telephone number of the sidewalk vendor.

3. Proposed hours and days of operation.

4. Whether the sidewalk vendor intends to operate a stationary vending cart or a roaming vending cart.

5. Proposed location of operation.

a. An application for the placement of a stationary cart in a commercial or industrial area of the City must contain a proposed location, marked by major cross streets, and a photo or sketch of such location.

b. An application for a roaming vending cart must contain a sketch showing the route the sidewalk vendor will travel.

6. The type of merchandise or food offered for sale or exchange.

7. Proof of a valid City Business Tax Certificate.

8. Proof of liability insurance and signed indemnification in favor of the City, in an amount not less than five hundred thousand dollars ($500,000.00) for property damage and injuries, including any injury resulting in death, caused by the operation of the vending business.

9. The application or renewal fee.

10. A valid California Department of Tax and Fee Administration seller's permit and additional license from State or local agencies to the extent required by law.

11. A permit from the Health Department for food related vending, if applicable.

12. A certificate of completion of a food handler course, if applicable.

13. Proof of a completed background check.

14. A declaration that the information provided to the City is true and correct.

15. Any other information as may be required by the Director.

B. Vending licenses will expire one (1) year after the date of issuance. The Director may provide for automatic annual vending license renewal and such renewal will be conspicuously stated on said license or permit, if applicable.

C. Vending licenses are not transferable.

D. A person whose vending license is revoked may not renew his or her vending license for one (1) year.

E. In accordance with Government Code Section 51038(c)(4), identification numbers, such as social security numbers, will be confidential and will not be disclosed.

(Ord. No. 754, § 3, 4-15-19)

A. Every cart used to vend food must be approved by the Health Department. A cart may only vend the types of food that are listed and approved by the Health Department under the Ventura County Environmental Health Division Permit.

B. A cart used for sidewalk vending must obtain, possess, and prominently display a valid vending license and all other required permits that are issued by other public agencies such as a Ventura County Environmental Health Division Permit.

C. A cart used for sidewalk vending must be placed at all times in compliance with the terms and conditions of this Chapter and all other applicable laws and/or regulations, including the California Retail Food Code if food is sold.

D. No cart that is used for sidewalk vending may exceed the length of seventy-two (72) inches, a width of fifty-four (54) inches, or a height, including roof or awning, of seventy-eight (78) inches, exclusive of a separate condiment table no larger than forty-eight (48) inches long and twenty-four (24) inches wide and trash receptacle no larger than twenty (20) gallons in capacity.

E. A cart must operate according to its approved hours of operation. The Director may impose reasonable hours of operation for sidewalk vendors. For sidewalk vending in nonresidential areas, the Director may limit hours of operation in a manner consistent with other businesses or uses on the same street(s) in those nonresidential areas.

F. No cart, condiment table, or trash receptacle may be left on the sidewalk after the sidewalk vendor's stated closing time.

G. A sidewalk vendor must maintain a clean and trash-free ten-foot radius from a stationary cart during hours of operation and must leave the area clean by the approved closing time.

H. Sidewalk vendors who vend food items must provide a trash receptacle for customers and must ensure proper disposal of customer trash. The trash receptacle must be large enough to accommodate customer trash, but less than twenty (20) gallons in capacity, without resorting to existing trash receptacles located on any block for use by the general public.

I. A stationary vending cart that vends food must be operated within two hundred (200) feet of an approved and readily-available toilet and handwashing facility. If the facility is located on private property, the sidewalk vendor must possess a copy of an enforceable contract between the private property owner and the sidewalk vendor allowing the vendor to utilize such facilities, including the days and hours of operation.

J. Vendors must comply with all applicable federal, State, and local laws, regulations, and ordinances.

K. No signs that are not attached to the cart may be used or displayed.

L. Sidewalk vendors may not set up tables, chairs, or other structures, unless otherwise approved by the City.

M. Carts must be self-contained, including any power, cooking, and heating equipment. Sidewalk vendors may not access a City or private power source without authorization from the City or private property owner or agent, and said power source hookup or cable shall not impede the path of travel.

N. No sidewalk vendor or cart may use any device that produces a loud noise, nor may the sidewalk vendor use or operate any loud speaker, public address system, radio, sound amplifier, or other similar device.

O. Before non-electric generators or auxiliary power may be used to power a cart, the sidewalk vendor must obtain permission, as applicable, from the Ventura County Air Pollution Control District. In addition, no generator or auxiliary power source may be used if its operation would generate noise levels in excess those standards contained within Port Hueneme Municipal Code Sections 3431 et seq.

P. Vending of services is prohibited.

(Ord. No. 754, § 3, 4-15-19)

No stationary vending cart may be used to vend within a residential zoned area. However, a roaming sidewalk vendor may use a roaming vending cart within a residential zone, and must move continuously except when necessary to complete a sale.

(Ord. No. 754, § 3, 4-15-19)

A. No sidewalk vendor may place or leave any cart:

1. Within five (5) feet of a marked crosswalk;

2. Within five (5) feet of the curb return of an unmarked crosswalk;

3. Within five (5) feet of any fire hydrant;

4. Within five (5) feet ahead and forty-five (45) feet to the rear of any sign designating a bus stop;

5. Within a marked bus zone;

6. Within ten (10) feet of a bench or shelter used for public transit;

7. Within five (5) feet of a driveway or driveway apron;

8. Within twenty (20) feet of an outdoor dining or patio area;

9. Within eighteen (18) inches from the edge of the curb; or

10. Where placement impedes the flow of vehicular traffic such as on public streets or public highways.

B. No cart may be chained or fastened to any utility pole, sign, tree, or other object in the public right-of-way or left unattended.

C. No cart may impede the flow of pedestrian traffic by reducing the path of travel to less than four (4) feet, or impede access to or restrict the free use of abutting property, including, but not limited to, residences and places of business, in accordance with the Americans with Disabilities Act (ADA).

D. Notwithstanding any specific regulations in this chapter, no sidewalk vendor may install, use or maintain a cart where placement endangers the safety of persons or property.

(Ord. No. 754, § 3, 4-15-19)

A. No sidewalk vending is allowed within three hundred (300) feet of a City-permitted event within the time period commencing one (1) hour before until one (1) hour after the event. Permitted events include farmers' markets, and any event that requires an encroachment permit or special event permit, or any other permit or authorization required by the City.

B. The City may by resolution adopt additional requirements consistent with Government Code Section 51038(b)(2)(B) for City-owned or operated parks, effective after signs are posted giving notice of such additional requirements.

(Ord. No. 754, § 3, 4-15-19)

Sidewalk vending in violation of this Chapter will not be punishable as a criminal infraction or misdemeanor, but will be subject to an administrative citation as follows:

A. For vending without a valid vending license:

1. An administrative fine of two hundred fifty dollars ($250.00) for a first violation;

2. An administrative fine of five hundred dollars ($500.00) for a second violation within one (1) year of the first violation; and

3. An administrative fine of one thousand dollars ($1,000.00) for a third violation and each subsequent violation issued within one (1) year of the first violation.

4. Upon proof of a valid vending license by the City before such fines become due, the City will reduce the amount of fines to one hundred dollars ($100.00) for the first violation, two hundred dollars ($200.00) for the second violation, and five hundred dollars ($500.00) for each subsequent violation.

B. For all violations of this Chapter other than vending without a valid vending license as outlined in subsection A above:

1. An administrative fine of one hundred dollars ($100.00) for a violation;

2. An administrative fine of two hundred dollars ($200.00) for a second violation within one (1) year of the first violation;

3. An administrative fine of five hundred dollars ($500.00) for a third violation within one (1) year of the first violation; and

4. An administrative fine of five hundred dollars ($500.00) for a fourth violation and each subsequent violation, and revocation of the vending license.

C. The City will provide the person subject to the administrative fine notice of his or her right to request an ability-to-pay determination and will make available instructions or other material for requesting an ability-to-pay determination.

D. All citations issued for violations of this Chapter are subject to the administrative hearing and appeal process pursuant to this Chapter in conjunction with the City's ability to use any civil remedy available to collect any unpaid administrative fine.

E. Fines assessed pursuant to this section may be reduced to twenty (20) percent of the original fine amount upon submission of proof of inability to pay at an adjudication hearing if requested by the person pursuant to Government Code Section 51038(f).

(Ord. No. 754, § 3, 4-15-19)

A. Initial Administrative Review. A sidewalk vendor who receives an administrative citation pursuant to this Chapter may request an initial administrative review of the citation within twenty (20) days of its issuance. This request must be made in writing to the Director and set forth the reasons the street vendor believes the violation did not occur or the street vendor was not responsible for the violation with particularity, which must include a copy of the citation and the address to which the conclusions of the City's review should be mailed. A request for an initial administrative review is a prerequisite to a request for an administrative hearing.

B. Initial Administrative Decision.

1. Upon receiving a request for initial administrative review, the Director will review the request and provide the street vendor with a written notification that:

a. The citation should be vacated because there was no violation, or the street vendor was not responsible for the violation, and setting forth the basis for that conclusion; or

b. The citation should not be vacated because no justification could be found.

2. The Director should mail a copy of the notification to the street vendor at the address on the request for initial administrative review along with notice establishing the fine due date and the procedure for requesting an administrative hearing.

3. The Director should complete his or her review within ten (10) days of receiving the street vendor's request.

C. Request for Administrative Hearing. Any street vendor dissatisfied with the conclusions of an initial administrative review may contest that citation by requesting an administrative hearing in writing within fifteen (15) days after the date the City serves the notice of initial administrative review decision. Requests for administrative hearings must be submitted to the Director and must be accompanied by an advance deposit of the fine or a request for hardship waiver.

D. Advance Deposit—Hardship Waiver.

1. Street vendors who are financially unable to make an advance deposit of the administrative fine may file for a hardship waiver. The request for hardship waiver must be filed with the Director on a form containing information that may be required by the Director. The Director will review the request and determine whether waiver is justified. A waiver may only be approved if the request for waiver is accompanied by a sworn affidavit, together with any supporting documents or materials, demonstrating that the street vendor's actual financial inability to deposit the full amount of the fine.

2. The Director will inform the street vendor in writing regarding whether the Director approved the waiver. This determination must be served upon the citee by mail at the address provided in the waiver application. The Director's determination is final.

3. Should the Director determine that a waiver is unjustified, the street vendor must deposit the full amount of the administrative fine with the City not later than ten (10) days after the date of that decision. Failure to make a deposit within ten (10) days after the waiver denial is deemed waiver of the street vendor's right to an administrative hearing and the administrative fine will be deemed delinquent.

E. Hearing Officer. The Director designates the hearing officer for the administrative citation hearing.

F. Hearing Date. After receiving a timely hearing request and deposit or waiver of the fine amount, the Director sets an administrative hearing on a date not less than fifteen (15) days or more than sixty (60) days from the date the hearing is requested. Written notice of the date, time, and location of the administrative hearing must be provided to the street vendor at least fifteen (15) days prior to the hearing date.

G. Conduct of Hearings.

1. Evidentiary rules. The administrative citation is prima facie evidence of the respective facts contained in the citation. Both the street vendor and City personnel have the opportunity to testify and present additional evidence concerning the administrative citation. Evidence may include, without limitation, witness testimony, documents or other similar evidence. Evidence sought to be introduced is not limited to any legal rules of evidence except for the rule that it be relevant and material to the issues of whether the violation alleged in the citation occurred and whether the street vendor was responsible for the violation.

2. Waiver of Personal Appearance at Hearing. In lieu of personally appearing at an administrative hearing, the street vendor may request that the hearing officer decide the matter based on the citation itself and any other documentary evidence submitted by the street vendor or City personnel before the hearing date.

3. Failure to Appear at Hearing. Failure of a street vendor to appear at the hearing is deemed a waiver of the right to be personally present at the hearing. The hearing officer must then decide the matter based upon the citation itself, any documentary evidence previously submitted, and any additional evidence that may be presented at the hearing by City personnel.

4. Attendance of City Personnel. The City employee who issued the administrative citation may, but is not required to, attend the administrative hearing. If the City employee does not attend, City personnel may, before the hearing date, submit reports, photos or other documentation regarding the violation to the hearing officer for consideration at the hearing.

5. Continuation of Hearings. The hearing officer may continue any hearing and request additional information from the street vendor or City personnel before issuing a written decision.

H. Hearing Officer's Decision.

1. The hearing officer must issue a written decision to uphold or set aside the administrative citation and present the reasons for that decision.

2. The Director must send a copy of the hearing officer's decision to the street vendor with notice of the street vendor's right to appeal the decision in Superior Court.

3. The hearing officer's decision is the City's final action on the matter. There is no right to an appeal other than as provided in this Chapter. The hearing officer's decision is final as of the date of the decision.

I. Disposition of Administrative Fines.

1. Should the hearing officer uphold the administrative citation, the City can retain the deposited fine amount.

2. Should the hearing officer vacate the administrative citation, the City must promptly refund the amount of the deposited fine, if any.

3. Should the hearing officer uphold the administrative citation and a hardship waiver was previously granted, the due date for paying the administrative fine will be thirty (30) days from the date of the notice of the hearing officer's decision.

4. The City may use all legal means to collect any past due fines, including penalties and interest, should a street vendor fail to pay in a timely manner.

J. Right to Judicial Review.

1. A street vendor may appeal the hearing officer's decision by filing an appeal with the Superior Court pursuant to Government Code Section 53069.4, or any successor statute, within twenty (20) days from service of the hearing officer's decision.

2. Should the street vendor file a timely appeal with the Superior Court, the requirement to pay the fine is suspended and the payment of the fine, if any, will be in accordance with the Superior Court decision.

(Ord. No. 754, § 3, 4-15-19)

The City may request a sidewalk vendor remove any cart that is in violation of this Chapter. If the sidewalk vendor refuses to remove the cart, or if a cart has been abandoned, the City may cause the cart to be removed and may subsequently dispose of the cart (including any associated merchandise and food) if not claimed by the sidewalk vendor within thirty (30) days of removal by the City, or if an administrative appeal is filed related to the cart removal, then thirty (30) days after a final decision in the administrative appeal (including the payment of any outstanding administrative fine).

(Ord. No. 754, § 3, 4-15-19)

It shall be unlawful for any person to solicit contributions or donations or vend while from, or when the person solicited is in any median on any street or highway as defined by the California Vehicle Code.

(Ord. No. 831, § 2, 5-4-26)