Westminster Municipal Code Ch. 8.06 Sidewalk Vending

For purposes of this chapter, the following words and phrases shall have the following meanings. Whenever any words or phrases used herein are not defined, but are defined in the California Health and Safety Code, Business and Professions Code, or the Vehicle Code, such definitions shall apply. 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.

"Auxiliary handwashing and warewashing facilities"

means a nearby sanitary standalone sink facility to satisfy the county health department requirement of having four sinks attached to the vending cart or stand.

"Cart"

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

"Certified farmers' market"

shall be as defined in Section 27512 of the California Health and Safety Code.

"City building"

means any building and the abutting parking lot(s) which is owned or occupied by the city of Westminster or any of its departments and which is used for public purposes.

"City property"

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

"Civic Center"

means the area in the city of Westminster, county of Orange bounded by All American Way on the east, Westminster Boulevard to the north, Jackson Street on the west, and 13th Street on the south.

"Community development director"

means the community development director or a designee they select to make determinations pertaining to this chapter.

"Compact mobile food operation"

is a mobile food facility that operates from an individual or from a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other nonmotorized conveyance. Such an operation would be restricted to limited food preparation. In certain circumstances operators are not required to obtain a health permit from the local health department.

"Fire station"

means any facility where fire engines and other equipment of the Orange County fire authority are housed.

"Food"

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

"Goods" or "merchandise"

includes items and products of every kind and description, including all foods, produce and beverage items.

"Hearing officer"

is the contractor hired by the city to impartially consider appeal requests and decide on the outcome of appeals.

"Integral equipment"

for purposes of a compact mobile food operation facility, means both equipment that is permanently attached to the primary unit and equipment that is securely fastened to the primary unit. The purpose is to allow for the construction of modular carts with flexible cooking uses, carts that can be disassembled for transportation and cleansing, and carts that incorporate already-existing and approvable equipment that can be securely fastened to a cart without being permanently welded to the primary unit.

"Limited food preparation"

means permitted food preparation activities "in the field" rather than at a commissary, to include such activities as: (1) slicing and chopping of non-potentially hazardous fruits and vegetables; (2) pre-cooking food in an approved kitchen and "hot-holding" or "cold-holding" that food prior to service from a vending cart; (3) re-heating food that was previously prepared in an approved kitchen.

"Marijuana"

means both medical marijuana and non-medical marijuana.

"Merchandise"

means any tangible personal property that can be sold and immediately obtained from a sidewalk vendor, excluding food. Items for rent shall not be considered merchandise. Merchandise excludes any service.

"Park"

means each and every park recreation center, sporting field, hiking trail, walking track, garden, barbecue, picnic area, and every other recreation facility owned, managed and/or controlled by the city and/or under the jurisdiction of the city including parking lots attached thereto.

"Parkway"

means that portion of a public street which is not improved for actual street, curb, gutter, or sidewalk use, and which is available for planting, landscaping, and maintaining street trees.

"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 person or persons, domestic and foreign corporations, limited liability company, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, Massachusetts Trust, business or common law trusts, societies, and individuals transacting and carrying on any business in the city.

"Police station"

means any facility where police vehicles and other equipment of the city police department are housed.

"Reduced sink, water tank and water heating requirements"

means that if a compact mobile food operation is not handling raw meat on site, the sidewalk vendor is exempt from the three-compartment warewashing sink requirement, allowing the operator to carry spare utensils as an alternative. Also, the operator is exempt from the requirement of having a water heater, and also allows these small facilities to operate with a smaller integral water tank.

"Reduced testing requirements"

means a food handler's card from the county health department required for operation of a compact mobile food operation, otherwise known as the standard food safety knowledge requirement for restaurant employee and other workers in the food retail industry. In most cases, the food handler's card can be obtained on-line.

"Residential zone"

means any area zoned or used exclusively as residential in Westminster. This includes the public sidewalk of residential streets, directly adjacent to residential zoning.

"Roaming sidewalk vendor"

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

"Sidewalk"

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

"Sidewalk vendor" or "vendor"

means a person(s) who sells food or merchandise from a cart, compact mobile food operation or from one's person, upon a sidewalk, pathway or park.

"Sidewalk vendor activities" or "sidewalk vending activity"

means actions that qualify a person as a sidewalk vendor or actions done in anticipation of becoming a sidewalk vendor such as, but not limited to, placement, or maintenance of any cart.

"Special event"

means any event permitted pursuant to Chapter 9.61 of the municipal code.

"Standard plan pre-approval"

means standardized blueprints for vending carts, stands, racks, and other facilities designed for use as a compact mobile food facility, that have been pre-approved by the county health department.

"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 chapter, or any successor chapter.

"Vend" or "vending"

means the sale or offering for sale of any goods or merchandise to the public from either a sidewalk vendor or a vehicle (food truck).

(Ord. 2601 § 1, 2023)

A. No person, either for themselves or any other person, shall engage in any sidewalk vendor activities within the city without first applying for and receiving a sidewalk vendor permit from the city.

B. A written application for a sidewalk vendor permit shall be filed with the city on a form provided by the city. Such application shall be accompanied by a nonrefundable application fee in such amount as established by resolution of the city council. Any such permit shall be required to be renewed annually in conjunction with the business license and a separate nonrefundable application fee paid yearly for such renewal application. Sidewalk vendor permit(s) are nontransferable and any change in ownership or operation of cart requires a new permit.

C. The written application shall include the following information:

1. An address where the applicant consents to receive service of process. An acceptable address for this purpose shall include a post office box or private mailbox that complies with paragraph (2) of subdivision (b) of Business and Professions Code Section 17538.5.

2. A schedule of the applicant's proposed hours of operation, items of sale, and area/locations of operation.

3. A description of all vending equipment (including evidence of county department of health approval of such equipment, if required), information identifying the approved kitchens for food preparation and location where cart will be stored (Section 8.06.077), and signs, or other means of advertisement proposed to be used.

4. For all food vending applications, evidence of a permit from the county health department for the sale of food or beverages, as may be required. A county health permit may not be required in certain circumstances for sidewalk vendors and other compact mobile food, whose operations are less than twenty-five square feet or less of display area that sells only bagged snacks, cans of soda, bottled water, whole fruits and vegetables, canned goods that do not need to be refrigerated, and other similar foods. However, a food handler's card is required (reduced testing requirements).

5. Evidence of commercial general liability insurance.

6. Copy of a United States or California State issued identification with photo identification, and taxpayer identification number.

7. A California seller's permit number pursuant to Section 6067 of the Revenue and Taxation Code that designates "City of Westminster" as a location or sublocation.

(Ord. 2601 § 1, 2023)

The provisions of this chapter shall not be applicable to or deemed to prohibit:

A. The vending of lemonade or other similar activity by a minor under the age of sixteen from a location immediately in front of their residence.

B. The vending of prepackaged cookies, snacks, or other candies by a minor under the age of sixteen, for a period not exceeding thirty days per year, for the purpose of fundraising for a nonprofit 501(c)(3) organization, including, but not limited to, the Girl Scouts of America or other similar charitable nonprofits, dedicated to serving children or schools.

C. Nothing in this section shall authorize any activity which would otherwise constitute a violation of any other federal, state or local law.

(Ord. 2602 § 1, 2023)

The city will issue the sidewalk vendor permit if they find, based on all of the relevant information, that:

A. The conduct of the sidewalk vendor will not unduly interfere with traffic or pedestrian movement, or interfere with or endanger the public health, safety or general welfare or encourage loitering.

B. The conduct of the sidewalk vendor will not unduly interfere with normal governmental or city operations, 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 sidewalk vendor.

C. The conduct of such sidewalk vending activity will not constitute a fire hazard.

D. 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 chapter.

E. The sidewalk vendor has not had an individual or business permit or license with any agency, board, city, county, territory, or state denied, revoked, restricted, or suspended within the last five years.

F. The sidewalk vendor application contains all required information and the sidewalk vendor has not made a materially false, misleading or fraudulent statement of fact to the city in the application process.

G. The sidewalk vendor has paid the business license tax and produced evidence of a California seller's permit.

H. The sidewalk vendor's cart and proposed activities conform to the requirements of this chapter.

I. The sidewalk vendor has provided adequate insurance to protect the city from liability associated with sidewalk vendor activities, as determined by the city.

J. The sidewalk vendor has not been convicted of any misdemeanor, which is sexual in nature or involving moral turpitude or of any felony within five years of the date of application submittal.

(Ord. 2601 § 1, 2023)

A. If the city finds that the requirements set forth in Section 8.06.030 have not been met, he or she shall deny the application for the sidewalk vendor permit. The community development director shall provide written notice of such denial specifying the ground or grounds of such denial. Notice of denial of the application for the permit shall be deemed to have been served upon the date it is personally served on the applicant or three days following the date the notice is deposited in the United States mail with postage prepaid and addressed to the sidewalk vendor at the residence address set forth in the application for the permit.

B. No person whose permit is denied shall be eligible to apply for a new sidewalk vendor permit for a period of one year following such denial. The date of denial shall be the expiration of the appeal period.

(Ord. 2601 § 1, 2023)

A. Any sidewalk vendor permit may be revoked by the community development director for good cause shown, including, but not limited to, any of the following reasons:

1. Falsification of any information supplied by the sidewalk vendor upon which issuance of the permit was based.

2. Failure of the permittee, or any employees or subcontractors of the permittee, to comply with the regulations set forth in this chapter or the requirements of the California Retail Food Code (Health and Safety Code).

3. A threat or harm to public health, safety or welfare resulting from sidewalk vending activity of the permittee, including, but not limited to, county health department citations/complaints due to food borne illness stemming from sidewalk vendor and failure to comply with the California Retail Food Code (Health and Safety Code).

4. Upon a fourth violation or a subsequent violation of any requirement of this chapter.

B. Notice of intent to revoke a sidewalk vending permit, with any and all specific grounds for revocation, shall be served in writing no less than thirty calendar days before revocation to the address listed in the application or to any subsequent address provided to the city by the permittee. The notice shall include a date, time, and address for a hearing before the community development director where the sidewalk vendor permittee shall have opportunity to present evidence as to why their permit should not be revoked.

C. No sidewalk vendor whose permit is revoked shall be eligible to apply for a new permit until the expiration of the term of the rescinded permit.

(Ord. 2601 § 1, 2023)

A. Any person whose application for a sidewalk vendor permit has been denied or revoked may appeal such decision by filing a written notice of appeal with the city clerk within ten days following the date of service of the decision and payment of the appeal fee, which fee shall be established by resolution of the city council. The date of filing shall be the date the city clerk receives the notice and appeal fee. The notice of appeal shall fully set forth the grounds upon which the appeal is based.

B. Upon receipt of a timely appeal, a hearing officer shall hear such appeal within twenty days following the date of filing such appeal and shall give the appellant not less than five days' advance notice of the date of such hearing. The decision of the hearing officer shall be based upon the criteria set forth in this chapter. The appellant shall be notified of the decision of the hearing officer by mailed written notice. The decision of the hearing officer shall be final. No revocation or denial of a permit pursuant to this section shall be deemed final or effective during the pendency of a timely filed appeal until the date of mailing of the hearing officer's decision affirming such revocation or denial; provided, however, no permit holder shall operate during any period of time in which the insurance coverage required by this chapter is not in full force and effect.

(Ord. 2601 § 1, 2023)

Every sidewalk vendor is 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 cart or carried by the sidewalk vendor. Food and merchandise shall not be stored, placed, or kept on any public property. If affixed to the cart, the overall space taken up by the cart shall not exceed the size requirements provided in this section.

B. The business license, California seller's permit and vendor permit shall be displayed conspicuously at all times on the cart or the sidewalk vendor. If multiple sidewalk vendors are staffing a cart each person shall obtain and wear his or her vendor permit on their person in a conspicuous manner.

C. Sidewalk vendors shall not leave their cart unattended.

D. All signage and advertising related in any way to the sidewalk vendor shall be stored either inside or affixed to the cart. Signage and advertising shall not be stored, placed, or kept on any public property. If affixed to the cart, the overall space taken up by the cart shall not exceed the size requirements provided in this section. Signage shall also comply with the requirements set forth in Section 17.330.040 Prohibited Signs. Sidewalk vendors shall not use any electrical, flashing, wind powered, or animated sign.

E. All sidewalk vendors shall allow a police officer, firefighter, code enforcement officer, health inspector, or other government official charged with enforcing laws related to sidewalk vendor activities, at any time, to inspect their carts for compliance with this chapter.

F. Except as otherwise permitted under federal, state or local law or regulation, carts and attachments thereto shall not exceed a total height of four feet, a total width of four feet, and a total length of four feet. Only umbrellas may be used as an attachment to the cart and are allowed to exceed the total height of four feet, but no higher than eight feet. The umbrella must also provide a minimum of seven feet of vertical clearance.

G. Sidewalk vendors selling food shall have in their possession at all times they are conducting sidewalk vending activities, all applicable county and state food vending licenses.

H. Sidewalk vendors that sell food shall maintain a trash container in or on their cart and shall not empty their trash into public trashcans. The size of the sidewalk vendor's trash container counts as part of the size limit of a cart.

I. Sidewalk vendors shall not leave any location without first picking up, removing, and disposing of all trash or refuse from their operation. Sidewalk vendors shall immediately clean up any food, grease or other fluid or item related to sidewalk vending activities that falls on public property. Sidewalk vendors shall follow all National Pollution Discharge Elimination System (NPDES) regulations for illicit discharge.

J. Sidewalk vendors shall maintain a minimum four-foot clear accessible path for pedestrian ingress and egress free from obstructions, including cart and customer queuing area.

K. Sidewalk vendors shall ensure that all required insurance is in effect prior to conducting any sidewalk vendor activities and maintained for the duration of the permit.

L. Sidewalk vendors shall not utilize sound amplifying equipment nor nonamplified musical or noise making devices.

M. Sidewalk vendors shall not utilize tables or chairs. Common prohibited uses of tables and chairs include the support of food and merchandise, and the creation of an unpermitted outdoor dining area.

(Ord. 2601 § 1, 2023)

A. Sidewalk vendors and other compact mobile food operations with twenty-five square feet or less of display area that sell only bagged snacks, cans of soda, bottled water, whole fruits and vegetables, canned goods that do not need refrigeration, and other similar foods are exempt from the requirement to obtain a health permit from the county health department. Instead, only a food handler's card is required.

B. Unenclosed mobile food facilities such as compact mobile food operations allow the sidewalk vendor to conduct the following "limited food preparation" activities in the field rather than at a commissary.

1. Slicing and chopping of non-potentially hazardous fruits and vegetables.

2. Pre-cooking food in an approved kitchen and "hot-holding" or "cold-holding" that food prior to service from a vending cart.

3. Re-heating food that was previously prepared in an approved kitchen.

C. Reduced equipment requirements for compact mobile food operations include, but are not limited to, the following:

1. Use of auxiliary handwashing and warewashing facilities.

2. Reduced sink, water tank and water heater requirements.

3. Use of integral equipment.

4. Vending cart consistent with county health department standard blueprint plan design that has already received authorization by the county health department.

(Ord. 2601 § 1, 2023)

A. Sidewalk Vendor Use of Existing Approved Kitchen Spaces. The county health department may approve existing permitted food facilities, such as restaurants, any kitchen facility used as a commissary, as well as any church, school, library, community center and other facilities with commercial grade kitchens to provide an approved space for sidewalk vendors to safely prepare food and store compact mobile food operation facilities like vending carts or stands.

B. A home being used as a cottage food operation or a microenterprise home kitchen operation may serve as a food preparation and storage space for a compact mobile food operation if the county health department deems the home to have adequate facilities to support the compact mobile food operation. No more than two compact mobile food operations can be stored in a private home unless specifically approved by the county health department.

(Ord. 2601 § 1, 2023)

A. Sidewalk vendors shall comply with all federal, state, county, and local laws and regulations.

B. Cart(s) shall not touch, lean against or be affixed at any time to any building or structure, including, but not limited to, lampposts, parking meters, mailboxes, traffic signals, fire hydrants, benches, bus shelters, newsstands, trashcans or traffic barriers.

C. Sidewalk vendors shall not engage in any of the following activities:

1. Renting merchandise to customers.

2. Displaying merchandise or food not available for immediate sale.

3. Selling of alcohol, marijuana, adult-oriented material, material displaying profane language or obscenities, tobacco products, products that contain nicotine or any product used to smoke/vape nicotine or marijuana.

4. Using an open flame on or within any cart, except as otherwise permitted under federal, state, or local law.

5. Using an electrical outlet or power source that is owned by the city or another person other than the sidewalk vendor.

6. Conducting sidewalk vending activities anywhere in the city between the hours of twelve a.m. and seven a.m. adjacent to commercial uses. Conducting sidewalk vending activities anywhere in the city between the hours of ten p.m. and seven a.m. adjacent to any other uses.

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 declined the offer to purchase food or merchandise.

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

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

10. 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.

11. Touching the person being offered food or merchandise without that person's consent.

12. Placing their cart outside of any pathway or sidewalk when engaging in sidewalk vending activities.

13. Placing any cables or wires across any pathway or sidewalk when engaging in sidewalk vending activities.

D. Sidewalk vendors shall not engage in sidewalk vending activities at the following locations:

1. Any residential zone in the city. This restriction only applies to stationary sidewalk vendors.

2. Parks.

a. Stationary sidewalk vending is prohibited in all parks where the city has granted exclusive restaurant concessions (including Buckingham Park, Westminster Park, and any location the city may award an exclusive restaurant concession in the future).

b. Roaming sidewalk vendors are permitted in parks even if an exclusive concession has been granted.

3. The Civic Center, other city owned buildings, including, but not limited to, any police station, fire station, public works yard, community services building or senior center, except as otherwise permitted under a special event permit.

4. Any city property that does not meet the definition of a sidewalk or pathway, including, but not limited to, any alley, square, street, street end, or parking lot.

5. An area designated for barriers for protection of the public.

6. Within two hundred feet of:

a. A public or private school.

b. A place of worship.

c. A large or general child day-care facility.

d. A permitted certified farmers' market or swap meet during the limited operating hours of that certified farmers' market or swap meet.

e. An area designated for a special event pursuant to a city issued permit, during the limited duration of the special event.

7. Within one hundred feet of:

a. Another sidewalk vendor.

b. The intersection of a street and a sidewalk.

c. The portion of any city facility that is renting or selling merchandise or selling food to the public or where the rental merchandise is stored.

d. Any police officer, firefighter, or emergency medical personnel who are actively performing their duties or providing services to the public.

8. Within twenty-five 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. Automated teller machine.

d. Driveway, alley, or entrance to a parking lot or parking garage.

e. Entrance or exit to a building, structure, or facility.

f. Trash receptacle, bike rack, bench, bus stop, restroom, public catch basins, or similar public use items.

(Ord. 2601 § 1, 2023)

A. A violation of this chapter by a sidewalk vendor who has a valid sidewalk vending permit from the city is punishable only by an administrative citation pursuant to Chapter 1.14 in an amount not to exceed the following:

1. An administrative fine not exceeding one hundred dollars for a first violation.

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

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

B. If a sidewalk vendor violates any portion of this chapter and cannot present the citing officer with proof of a valid permit, the sidewalk vendor shall be assessed administrative fines in the following amounts:

1. An administrative fine not exceeding two hundred fifty dollars for a first violation.

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

3. An administrative fine not exceeding one thousand dollars for each additional violation within one year of the first violation.

C. Upon proof of a valid permit issued by the city, the administrative fines set forth in subsection B shall be reduced to the administrative fines set forth in subsection A, or any successor sections.

D. The community development director, or the community development director's designee, may revoke a permit issued to a sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations within one year of the first violation.

E. A violation of this chapter shall not be punishable as an infraction or misdemeanor. No person alleged to have violated the provisions herein shall be subject to arrest except when otherwise permitted by law.

F. Failure to pay an administrative citation issued pursuant to this section shall not be punishable as an infraction or misdemeanor. Additional fines, fees, assessments, or any other financial conditions, beyond those authorized herein shall not be assessed.

(Ord. 2601 § 1, 2023)

A. Administrative citations may be appealed pursuant to Section 1.14.060, except where the hearing officer is considering an administrative fine, he or she has the power to:

1. Reduce the fine based upon the person's ability to pay the fine.

2. If the hearing officer finds the person meets the criteria described in subdivision (a) or (b) of Government Code Section 68632, or any successor section, the hearing officer shall order the city to accept, in full satisfaction, twenty percent of the administrative fine imposed pursuant to this chapter.

3. 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.

B. All appeals of administrative citations shall be conducted in accordance with Chapter 1.14 of this code.

(Ord. 2601 § 1, 2023)