Chapter 4.05
SIDEWALK VENDING
Sections:
4.05.040 Review of permit application – Decision.
4.05.045 Generally applicable sidewalk vending standards.
4.05.050 Stationary sidewalk vending locations and standards.
4.05.060 Sidewalk vending in parks.
4.05.070 Roaming sidewalk vending.
4.05.080 Suspension – Rescission.
4.05.090 Appeals to city manager.
4.05.010 Purpose.
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. 2019-206 § 2].
4.05.020 Definitions.
For purposes of this chapter, the following definitions apply:
A. “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.
B. “City” means the city of Aliso Viejo.
C. “Director” means the director of public works.
D. “Park” means a public park owned or operated by the city.
E. “Roaming sidewalk vendor or vending” means a sidewalk vendor who moves from place to place and stops only to complete a transaction.
F. “Sidewalk” means a portion of a street between the curbline and the adjacent property line, or an easement or right-of-way held by the city across the front of private property, and intended for the use of pedestrians. For purposes of this chapter, “sidewalk” shall also include a paved path or walkway owned by the city that is specifically designed for pedestrian travel.
G. “Sidewalk vendor or vending” means 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 person, upon a public sidewalk or other pedestrian path.
H. “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.
I. “Event permit” means a special event or temporary use permit in which the city has issued a permit to an applicant pursuant to Chapter 11.05 AVMC and AVMC Title 15. “Event permit” shall also include city or other public agency events that would otherwise qualify as a special event except that no city-issued permit is required. [Ord. 2019-206 § 2].
Cross-reference: definitions generally, AVMC 1.02.010, 4.01.010.
4.05.030 Permits required.
A. All sidewalk vendors shall obtain a sidewalk vending permit from the city public works department prior to engaging in any sidewalk vending activities. The following information shall be required:
1. Name, current mailing address, email address, and phone number of the vendor; and
2. If the vendor is an agent of an individual, company, partnership, or corporation, the name and business address, phone number, and email address of the principal; and
3. If the vendor will have employees, the name(s), current mailing address(es), and phone numbers of the person(s) who will be employed as roaming sidewalk vendor(s); and
4. The number of sidewalk vending operations the vendor intends to operate within the city; and
5. The days and hours of operation the sidewalk vendor intends to operate; and
6. Whether the vendor intends to operate as a stationary or roaming sidewalk vendor; and
7. If applicable, a description of the type of food proposed to be offered for sale or exchange; and
8. If applicable, a description of the merchandise/goods to be offered for sale or exchange; and
9. 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; and
10. A copy of the vendor’s social security card with the number; or
A copy of the valid California Driver’s license issued to the vendor; or
A copy of the individual taxpayer identification number issued to the vendor; or
A municipal identification number.
a. Any such identification number(s) or license(s) collected shall not be available to the public for inspection and shall remain confidential and not be disclosed except as required to administer the permit or licensure program or comply with a state law or state or federal court order; and
11. If preparing or selling food, a copy of the Orange County health department permit issued to the vendor; and
12. 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 when considering the vendor equipment and anticipated customer queue, in compliance with the Americans with Disabilities Act; and
13. A copy of an encroachment permit issued by the city pursuant to Chapter 10.04 AVMC; and
14. A copy of a general liability policy naming the city as additional insured in the amount of $1,000,000; and
15. Proof that the vendor possesses a valid California Department of Tax and Fee Administration seller’s permit, which shall be maintained for the duration of the vendor’s city permit; and
16. An acknowledgment that the vendor will comply with all generally applicable local, state, and federal laws; and
17. A certification by the vendor that, to his or her knowledge and belief, the information contained in the application is true; and
18. An agreement by the vendor to indemnify, defend (at the vendor’s sole cost and expense), and hold the city of Aliso Viejo, and its officers, officials, employees, representatives, and agents, harmless, from any and all claims, losses, damages, injuries, liabilities or losses which arise out of, or which are in any way related to, the city’s issuance or failure to issue a sidewalk vending permit, the city’s decision to approve or its refusal to approve the sidewalk vending permit, the operation of the sidewalk vending use and activity, and the process used by the city in making its decision. 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; and
19. An acknowledgment that use of public property is at the vendor’s own risk, and the city does not take any steps to ensure public property is safe or conducive to sidewalk vending operations; and
20. A list of all other cities or other jurisdictions in which the vendor has operated a sidewalk vending operation or similar operation within the past 12 months, whether a permit was required to operate, and, if so, whether the permit had been revoked in the past 12 months.
B. Prior to the issuance of a sidewalk vendor permit, the applicant shall cause to be filed with the chief of police or his or her designee a LiveScan background check conducted by the California Department of Justice within the previous six months of the application date. The chief of police shall furnish each applicant with a LiveScan request form for use at any LiveScan vendor location.
C. At the time the application or renewal application is filed, the application shall pay the permit processing fee established by separate resolution of the city council.
D. Vending on private property shall be subject to AVMC 15.22.130. [Ord. 2019-206 § 2].
4.05.040 Review of permit application – Decision.
A. Upon acceptance of a properly completed and filed sidewalk vendor permit application and receipt of an acceptable LiveScan report issued by the Department of Justice, the public works director shall conduct a preliminary investigation to determine compliance with this chapter and shall make such determination within no more than 30 days of acceptance to approve or deny the application. The director shall provide the applicant with written notice of his or her decision to the address indicated in the application.
B. The director shall 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 a valid social security card or valid California driver’s license; or valid individual taxpayer identification number; or a municipal 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 Section 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. The applicant has had a sidewalk vending permit or similar permit revoked within the past 12 months in the city or any other jurisdiction.
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 director 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. 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 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.
F. 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.
G. 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.
H. Display of Permit. Such sidewalk vending permit shall, during the time such permittee is engaged in sidewalk vending, be worn constantly and conspicuously by the permittee on the front of his or her outer garment. Sidewalk vendors shall be required to exhibit their permits and/or licenses at the request of any person. If multiple sidewalk vendors are staffing a sidewalk vending operation, each vendor shall, during the operation of sidewalk vending, constantly and conspicuously wear the permit on the front of his or her outer garments. [Ord. 2019-206 § 2].
4.05.045 Generally applicable sidewalk vending standards.
Sidewalk vendors shall meet all of the following requirements:
A. The sidewalk vendor is duly licensed and meets all requirements of AVMC 4.05.030; and
B. The sidewalk vendor can set up their vending operation while still leaving a minimum of 36 inches of accessible path of travel, without obstruction from the vendor equipment and the customer queue, along the public sidewalk or public pathway; and
C. The sidewalk vendor maintains the vending area in a clean, orderly, and sanitary condition; and
D. Prior to leaving the vending area, the sidewalk vendor shall collect all litter and debris within 10 feet of the vendor that was generated by the vending activities; and
E. There shall be no disposal of cooking material or waste, including but not limited to used oil, into the city’s trash receptacles, storm drains, plant material, or foliage. Vendors shall immediately clean up any food, grease, or other fluid or item related to the sidewalk vending operation that falls onto public property; and
F. The sidewalk vendor location does not block entrances to private or public buildings, private or public driveways, parking spaces or building windows; and
G. No vending shall occur within 10 feet of a fire hydrant, fire escape, bus stop, loading zone, handicapped parking space or access ramp, fire station driveway, or police station driveway; and
H. No tables, chairs, fences, shade structures, other site furniture, or any freestanding signs shall be permitted in conjunction with the vendor’s vending activities; and
I. The sidewalk vendor shall not attach or use any water lines, electrical lines, or gas lines during vending operations; and
J. Exterior storage or display of refuse, equipment, materials, goods, wares, or merchandise associated with the vendor is prohibited; and
K. The sidewalk vendor shall not store, place, or keep any food or merchandise on public property; and
L. The sidewalk vendor shall not display any signage on public property; and
M. All signage and advertising related to the sidewalk vendor and/or the vending operations shall not be electrical, flashing, wind powered, or animated; and
N. The sidewalk vendor shall not use a horn, siren, amplified music, or any other audible device to attract attention to the presence of the vending vehicle; and
O. The sidewalk vendor shall not engage in aggressive sales, which shall include touching a person being offered food or merchandise without that person’s consent, continuing to offer food or merchandise for sale to a person after he or she has declined to purchase food or merchandise, or deliberately blocking or impeding the path of the person(s) being offered food or merchandise; and
P. The sidewalk vendor shall publicly display any and all required business and health licenses; and
Q. The sidewalk vendor shall remit all required and applicable taxes to the applicable taxing agencies; and
R. No vending shall occur within 500 feet of a certified farmers’ market, a swap meet, an event held pursuant to an event permit; and
S. The sidewalk vendor shall not leave his or her sidewalk vending operation unattended to solicit business for the vending operation; and
T. The sidewalk vendor shall not contain or use propane, natural gas, batteries, or other explosive or hazardous materials. The vendor shall not use an open flame for the sidewalk vending operation; and
U. The sidewalk vendor shall not sell alcohol, marijuana, adult-oriented material, tobacco products, products that contain nicotine, or any product used to smoke/vape nicotine and/or marijuana; and
V. No vending shall occur within a corner cutoff area. A corner cutoff area is that area at all intersecting and intercepting streets or highways. The cutoff line shall be in a horizontal plane, making an angle of 45 degrees with the side, front, or rear property line, as the case may be. It shall pass through the points located on both sides and front or rear property line, as the case may be. It shall pass through the points located on both sides and front or rear property lines at a distance of 30 feet from the intersection of such lines at the corner of a street or highway; and
W. No vending shall occur within 500 feet of any public or private academic school for elementary, junior high, or high school students; and
X. No vending shall occur within three feet of any street lights, edges of tree wells, parking meters, or aboveground utility structures; and
Y. No vending shall occur within two feet of any existing subsurface utility box, valve, or vault; and
Z. No vending shall occur within two feet of another vendor; and
AA. No vending shall occur at bus stop locations, red curbs, or at locations where there are existing aboveground amenities such as newsstands or street furniture, including but not limited to benches and bike racks; and
BB. No vending shall occur in roadways, medians, pedestrian islands, or bikeways; and
CC. No vending shall occur within 20 feet of the entrance way to any building, store, theater, movie house, house of worship, or place of public assembly; and
DD. No vending shall occur with 200 feet of City Hall, any police station, and any fire station. [Ord. 2019-206 § 2].
4.05.050 Stationary sidewalk vending locations and standards.
A. Stationary sidewalk vendors shall be prohibited from operating or establishing in any and all exclusively residential zones of the city.
B. Stationary sidewalk vendors may operate in nonresidential zones of the city, including mixed use zones.
C. Stationary sidewalk vendors shall meet the requirements of AVMC 4.05.045.
D. Stationary sidewalk vending shall only be conducted no earlier and no later than the hours of operation of businesses on the same street. If no businesses operate on the same street, stationary sidewalk vendors in nonresidential zones of the city shall only operate between the hours of 7:00 a.m. and 10:00 p.m. of every day. [Ord. 2019-206 § 2].
4.05.060 Sidewalk vending in parks.
A. Sidewalk vending of food or merchandise by stationary vendors shall be prohibited in any city park and any public open space area with a concession stand operated by a vendor under exclusive contract with the city selling food or merchandise.
B. Sidewalk vending of food or merchandise by roaming or stationary vendors shall be prohibited in the Aliso Viejo Ranch.
C. Subject to subsection (A) of this section, sidewalk vendors may operate in city parks provided they meet all of the requirements in AVMC 4.05.045.
D. Sidewalk vendors shall cease operations one hour prior to the close of the park. [Ord. 2019-206 § 2].
4.05.070 Roaming sidewalk vending.
A. Roaming sidewalk vendors shall meet all of the requirements in AVMC 4.05.045.
B. Roaming sidewalk vending hours for residential zones shall be conducted between the hours of 9:00 a.m. and 6:00 p.m. on weekdays, and between the hours of 9:00 a.m. and 5:00 p.m. on the weekend.
C. Roaming sidewalk vending for nonresidential zones shall only be conducted no earlier and no later than the hours of operation of businesses on the same street. If no businesses operate on the same street, roaming sidewalk vendors in nonresidential zones of the city shall only operate between the hours of 7:00 a.m. and 10:00 p.m. of every day. [Ord. 2019-206 § 2].
4.05.080 Suspension – Rescission.
A. A sidewalk vendor permit issued under this chapter may be suspended or rescinded by the director after four or more violations of this chapter in accordance with AVMC 4.05.100, at their discretion, 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;
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 this chapter shall be mailed, postage prepaid, to the holder of the sidewalk vendor permit at his or her last known address.
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. 2019-206 § 2].
4.05.090 Appeals to city manager.
In the event that any applicant or permittee desires to appeal from any order, rescission, or other ruling of the director/manager 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 10 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 city clerk a written appeal statement setting forth the grounds for the appeal, along with the city’s appeal fee, which shall be established by city council resolution. The filing of the appeal shall stay the enforcement of any decision suspending or rescinding the permit. The director/manager 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 city clerk. 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, unless timely judicial review is sought pursuant to Code of Civil Procedure Section 1094.6. In the event a timely action or proceeding is brought pursuant to Section 1094.6, the city manager’s decision shall be stayed automatically pending a final decision on the merits by the trial court. As used in this section, final decision on the merits does not include rehearing or appellate procedures. [Ord. 2019-206 § 2].
4.05.100 Penalties.
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 be punished by:
1. An administrative fine not exceeding $100.00 for a first violation.
2. An administrative fine not exceeding $200.00 for a second violation within one year of the first violation.
3. An administrative fine not exceeding $500.00 for each additional violation within one year of the first violation.
4. Rescinding the vending permit issued to the vendor for the remaining term of that permit upon the fourth violation or subsequent violations.
B. A violation of vending without a sidewalk vending permit may, in lieu of the penalties set forth in subsection (A) of this section, be punished by:
1. An administrative fine not exceeding $250.00 dollars for a first violation.
2. An administrative fine not exceeding $500.00 for a second violation within one year of the first violation.
3. An administrative fine not exceeding $1,000 for each additional violation within one year of the first violation.
C. If an individual is subject to subsection (B) of this section 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) of this section, 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 Government Code Section 68632(a) or (b), 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.
I. Nothing contained herein shall be construed to impede the city’s or county’s ability to enforce county health department codes and regulations. [Ord. 2019-206 § 2].
Cross-reference: violations and penalties generally, Chapter 1.06 AVMC.