Chapter 5.36
MOBILE FOOD VENDORS AND SIDEWALK VENDORS
Sections:
5.36.040 Regulation for sales.
5.36.080 Application of other laws and regulations.
5.36.090 Condition/appearance of vehicle.
5.36.100 Condition/appearance of site.
5.36.150 Applicability of chapter to existing businesses.
5.36.160 Suspension/revocation of permit to operate.
5.36.010 Purpose.
The general purpose of this chapter is to promote the health, safety, comfort, convenience, prosperity and general welfare of the citizens, businesses and visitors of Escalon by requiring that new and existing sidewalk vendors, stationary sidewalk vendors, and mobile food vendors provide the community and customers with a minimum level of cleanliness, quality, safety and security. It is the purpose and intent of the city council in enacting this chapter to provide mobile food vendors with clear and concise regulations to prevent safety, traffic and health hazards, as well as to preserve the peace, safety and welfare of the community. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.020 Findings.
A. The city council hereby finds and declares that mobile food vending activity occurring on public streets and sidewalks and private property within the city from mobile food conveyances creates the following negative impacts:
1. An increase in the amount of litter;
2. Trampling down lawns when mobile food vendors and their customers trespass upon or walk across private property;
3. An increased risk of vehicle accidents and personal injuries when vending from motorized vehicles;
4. Invasion of personal privacy when mobile food vendors remain parked for long periods of time in front of a person’s home or business;
5. An increased risk of personal injury when carrying products through a neighborhood and exposing such items to the public for sale.
B. The city council further finds that vending from vehicles, in particular when it occurs adjacent to residential neighborhoods, causes an adverse impact in the area due to the length of time that these commercial transactions are conducted at the same location. These activities sometimes continue for several hours during the day. Mobile food vendors stay at locations that are not designed to accommodate long-term business transactions, due to lack of restrooms and trash receptacles, as well as dominating needed parking and having the potential to create traffic hazards when other vehicles stop to make purchases from such vendors, traffic flow is disrupted or drivers are distracted. Accordingly, the city council has determined that the adoption of reasonable time, place and manner restrictions on the manner in which mobile food vending activities occur are necessary in order to protect the public health, safety and welfare of the citizens of Escalon. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.030 Definitions.
A. “Chief of police” shall mean the chief of police of the City of Escalon or his or her designee.
B. “Commissary” shall mean a food establishment in which food, containers, equipment or supplies are prepared, stored or handled for use in mobile food conveyances.
C. “Linear frontage” is the method used to determine distances as used in this chapter.
D. “Mobile food conveyance” shall mean any vehicle, trailer, motorized food wagon or stand, which may be moved from one place to another under its own power or by other motorized means.
E. “Mobile food vendor” shall mean any person who owns, controls, manages and/or leases a food vending vehicle or motorized food wagon; and/or contracts with person(s) to drive, operate, prepare foods and/or vend from a food vending vehicle, pushcart or motorized food wagon.
F. “Motorized food wagon” shall mean any vehicle as defined in Section 670 of the California Vehicle Code, which is equipped and used for retail sales of prepared, prepackaged, or unprepared, unpackaged food or foodstuffs of any kind on any public street, alley, highway or private street, alley or property within the City of Escalon. For the purposes of this chapter, a motorized food wagon shall also include any trailer or wagon pulled by a vehicle.
G. “Persons” shall mean any person, firm, partnership, association or corporation, and includes, but is not limited to, owners, operators, drivers, lessors and lessees of mobile food conveyances.
H. “Sidewalk vendor” has the meaning set forth in Chapter 6.2 (commencing with Section 51036) of Part 1 of Division 1 of Title 5 of the Government Code, currently defined as a person who operates, engages in, or carries on a food or merchandise vending business from a pushcart upon a public sidewalk, public street, park, median island, parking lot, alley, or other public place. A sidewalk vendor is not a mobile food vendor.
I. “Stationary sidewalk vendor” means a sidewalk vendor who vends from a fixed location.
J. “Vend” or “vending” shall mean the sale of prepared, prepackaged or unprepared, unpackaged food or foodstuffs of any kind from a mobile food conveyance on private or public property. Vending from a mobile food conveyance generally has at least one of the following characteristics:
1. Food is ordered and served from a take-out counter that is integral to the mobile food conveyance;
2. Food is paid for prior to consumption;
3. Mobile food conveyances from which the food is sold typically have a take-out counter and space for customer queuing;
4. Food and beverages are served in disposable wrappers, plates or containers; and
5. Food and beverages are prepared and sold for off-site consumption. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.040 Regulation for sales.
It shall be unlawful for any person to vend, or attempt to engage in vending or operate any vehicle or conduct any business for the purpose of vending from any vehicle parked, stopped or standing upon any public street, alley, highway or property, or private street, alley or property within the City of Escalon except in accordance with all applicable provisions of this code. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.050 Permit to operate.
A person desiring to engage in a mobile food vendor operation shall submit a written application for a permit to operate in a form acceptable to and with all supporting information required by the chief of police. Such application shall be accompanied by a nonrefundable, nontransferable application fee in an amount as established by resolution of the city council. Any such permit shall be required to be renewed annually and a separate nonrefundable, nontransferable application fee shall be paid yearly for such renewal application. Mobile food vendors must have the permit in their possession when vending. Permits to operate are nontransferable.
A. A background check in accordance with the requirements of EMC 5.04.160 must be obtained for the mobile food vendor and each person operating or vending out of the mobile food conveyance.
B. Every mobile food vendor shall obtain a City of Escalon business license.
C. As part of the permit to operate application, the mobile food vendor shall provide the following:
1. Mailing address for notification purposes. If during the term of the permit the permit holder has any change in the mailing address submitted on the original or renewal application, the permit holder shall notify the police department of such change in writing within 10 business days thereafter. Failure to provide updated contact information shall be grounds for permit suspension under EMC 5.36.160.
2. Legal names of the mobile food vendor and all persons operating or vending out of the mobile food conveyance.
3. Proof of current vehicle registration and a copy of an applicable vehicle insurance policy.
4. Four photographs (showing different exterior views) of each mobile food conveyance.
5. Dimensioned sample or rendering of proposed signage.
6. A copy of a current San Joaquin County environmental health permit.
7. Proof of automobile insurance as required by the Vehicle Code.
8. No person shall engage in, conduct or carry on the business of a mobile food vendor unless there is on file with the chief of police, in full force and effect at all times, documents issued by an insurance company authorized to do business in the State of California evidencing that the operator is insured under a liability insurance policy providing minimum coverage of $500,000 for injury or death arising out of the operation of the mobile food conveyance. Each mobile food vendor shall provide the chief of police with evidence of insurance within 45 days of the date of issuance of the permit.
9. For a permit to operate renewal application, mobile food vendors must show proof of payment to a commissary for the prior 12 months. New mobile food vendors shall provide current proof of payment to a commissary.
10. If the mobile food vendor is operating on private property, the mobile food vendor shall provide the following:
a. An affidavit in a form approved by the city from the property owner (if other than self) permitting the mobile food vendor to locate on the site.
b. A site plan, including sufficient parking for the primary use and the mobile food vendor, for all proposed stationary location(s) and a map of the proposed route/area of vending. Parking spaces shall be marked as required by zoning regulations.
c. An affidavit from the business or location providing the required restroom facilities for food service workers, stating the hours that those facilities are being made available.
D. As part of the permit to operate, the chief of police shall issue picture identification cards for the mobile food vendor and each person operating or vending out of the mobile food conveyance.
E. The following may constitute grounds for denial of a permit to operate or renewal application:
1. The proposed mobile food vending activity does not comply with all applicable laws including, but not limited to, the applicable building, zoning, housing, fire, safety and health regulations;
2. The applicant is unable to obtain a business license due to a criminal background check;
3. The applicant has, within three years immediately preceding the application filing date, had a permit to operate, vending license or similar permit suspended or revoked in another California jurisdiction;
4. The applicant has knowingly made a material misstatement in the application for a permit to operate;
5. There have been excessive calls for service to the police department within the 12 months preceding the renewal application with inadequate response by the mobile food vendor, involving the commission of crimes, disturbances, public nuisances or applicable Escalon Municipal Code violations; or
6. Failure to obtain clearance from San Joaquin County environmental health.
F. As an alternative to denial of a permit to operate for failure to meet the requisite housing, building, health and fire codes or zoning regulations, or failing to pass an investigation conducted by the police department, fire department or the San Joaquin County environmental health, the chief of police may issue a conditional permit to operate, with conditions imposed on the mobile food vending operation. The mobile food vendor shall comply with all permit conditions in order to maintain the conditional permit to operate. Failure to comply with the imposed conditions will subject the conditional permit to operate to suspension and/or revocation procedures or any other remedy authorized by law. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.060 Location.
A. A mobile food vendor may locate in the public right-of-way subject to the following conditions:
1. A mobile food vendor shall not operate within 300 feet of any school grounds, park, playground or city-operated recreation center.
2. A mobile food vendor shall not operate within 100 feet of any street intersection.
3. In addition to the above, a mobile food vendor must comply with the following regulations, depending upon the type of use in which it is located:
a. Residential Zones.
i. In a residential zone, a mobile food vendor shall move not less than 400 feet at least every 10 minutes and may not return to a previous location or within 400 feet of a previous location on the same calendar day.
ii. Permitted hours of operation are from 7:00 a.m. to 8:00 p.m.
iii. A mobile food vendor may not be located within 400 feet of another mobile food vendor.
b. Commercial Zones.
i. In a commercial zone, a mobile food vendor shall move not less than 400 feet at least every two hours and may not return to a previous location or within 400 feet of a previous location on the same calendar day.
ii. Permitted hours of operation are from 6:00 a.m. to 12:00 a.m.
iii. If a mobile food vendor is located in a commercial zone and is within 100 feet of a residence, it shall comply with the requirements listed above for residential zones.
c. Industrial Zones.
i. In an industrial zone, a mobile food vendor may operate 23 hours a day or as long as businesses within 300 feet of the mobile food vendor location are open, whichever is shorter.
ii. If a mobile food vendor is located in an industrial zone and is also within 100 feet of a residence, it shall comply with the requirements listed above for residential use area.
4. No mobile food vendors shall be located or maintained on public property, including bicycle pathways, inconsistent with any other city regulations.
B. A mobile food vendor may locate on private property subject to the conditions as follows:
1. Be incidental to a primary use with a valid business license; a temporary mobile food conveyance shall not be the primary use of a parcel. Mobile food conveyances shall not be permitted as an accessory use to a stand-alone parking lot;
2. Be located in a commercial or industrial zoning district. Mobile food vendors shall not be located on private property in a residential zoning district;
3. Not be located on a vacant parcel;
4. Be located on pavement per city standards;
5. Not utilize, or be located on, parking spaces required for the primary use. At least two parking spaces, in addition to those required for the primary use, shall be provided for the mobile food conveyance operation;
6. Not interfere with access, driveways, aisles, circulation or fire lanes and hydrants and shall not operate in a place where the operation will create an unsafe condition;
7. Comply with the requirements of the county health department; and
8. Not interfere with pedestrian movement or create a hazard for pedestrians. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.070 Exemptions.
A. Any person engaged in vending where such person has been authorized by the City of Escalon to engage in such activity by a special event permit, lease, real property license, agreement or other entitlements issued by the City of Escalon.
B. Any person delivering any goods by vehicle where such goods have been ordered in advance for such delivery from any business located at a permanent location and which goods are being delivered from such location to the customer by vehicle, regardless of the point of sale. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.080 Application of other laws and regulations.
A. The provisions of this chapter prohibiting the stopping or parking of a vehicle shall apply at all times or at those times specified by this chapter, except when it is necessary to stop a vehicle to avoid conflict with other traffic or in compliance with the directions of a police officer or official traffic control device.
B. The provisions of this chapter imposing a time limit on stopping or parking shall not relieve any person from the duty to observe other more restrictive provisions of the Vehicle Code, this code or any other ordinances of the city, prohibiting or limiting the stopping or parking of vehicles in specified places or at specified times. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.090 Condition/appearance of vehicle.
A. The mobile food vendor shall display, in plain view and at all times, current permits and licenses as well as the picture identification card of the person(s) operating or vending out of the mobile food conveyance.
B. While vending, drive wheels of the mobile food conveyance shall be chocked in such a manner as to prevent movement.
C. The mobile food conveyance shall be entirely self-sufficient in regards to gas, water and telecommunications. Should any utility hook-ups or connections to on-site utilities be used or required, the mobile food vendor shall be required to apply for appropriate permits to ensure building and public safety and consistency with applicable building and zoning regulations.
D. The mobile food vendor shall not discharge items onto the sidewalk, gutter, storm drainage inlets or streets. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.100 Condition/appearance of site.
A. The site shall be maintained in a safe and clean manner at all times.
B. Except as provided in subsection C of this section, no tables, chairs, fences, shade structures or other site furniture (permanent or otherwise) or any freestanding signs shall be permitted in conjunction with the mobile food vendor.
C. Any site improvements required for mobile food vendor operations shall require application for the appropriate permits to ensure building and public safety and consistency with applicable building and zoning regulations.
D. Exterior storage of refuse, equipment or materials associated with the mobile food vendor is prohibited. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.110 Lighting.
To vend between sunset and sunrise, the mobile food vendor shall install adequate lighting on the mobile food conveyance to ensure customer safety. The customer service side of the mobile food conveyance shall be illuminated with a minimum maintained two foot-candles of light, measured within a 10-foot radius at ground level, during the hours of darkness. Lighting shall be directed downwards and away from public streets and adjacent properties. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.120 Amplification.
While moving, a mobile food conveyance may utilize amplified music; provided, that such music shall not exceed 80 decibels at 10 feet from the source as measured by a sound level meter. Any amplified music shall cease while the mobile food conveyance is stopped for vending purposes. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.130 Sanitation.
A. All mobile food vendors shall operate out of a commissary pursuant to Health and Safety Code Section 114295.
B. All mobile food conveyances shall be equipped with refuse containers large enough to contain all refuse generated by the operation of such a vehicle, and the vendor of the mobile food conveyance shall pick up all refuse generated by such operation within a 25-foot radius of the vehicle before such vehicle is moved. No mobile food vendor shall dispose of any trash or refuse in any such public or private trash receptacle other than a trash receptacle owned, operated or otherwise provided by and under the control of such vendor.
C. A mobile food conveyance shall comply with Health and Safety Code Section 114315 regarding the availability of adequate toilet facilities for use by food service personnel. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.140 Safety and security.
A. No vending shall be permitted except after the mobile food conveyance has been brought to a complete stop and parked in a lawful manner.
B. The mobile food vendor shall install signage in a visible location on the mobile food conveyance indicating that loitering is not permitted and customers may only remain on the site for up to 15 minutes after receiving their food.
C. The mobile food vendor shall enforce the no loitering rule. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.150 Applicability of chapter to existing businesses.
All existing mobile food vendors shall obtain a permit to operate and otherwise comply with all of the requirements of this chapter. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 533 § 3, 2012; Ord. 515 § 4, 2007)
5.36.160 Suspension/revocation of permit to operate.
A. Violation and Noncompliance. The chief of police may refuse to renew a permit or may revoke or suspend an existing permit on the grounds that the permit holder has failed to comply with the permit conditions or other requirements of this chapter. If a suspended permit lapses during the suspension period, a new application must be filed at the end of the suspension period. In any such case, the permit holder shall have the right to appeal in the time and manner set forth in this section.
B. Revocation and Suspension of Permit to Operate.
1. The chief of police may revoke or refuse to renew a permit if he or she makes any of the findings for denial of a permit under EMC 5.36.050(E)(2), (E)(5) or (E)(6), upon any subsequent violation of any provision within one year following prior suspension under subsection (B)(2) of this section or upon demonstrated inability to operate a mobile food vending operation in a law-abiding manner, thus necessitating action by law enforcement officers.
2. The chief of police may suspend a permit to operate for a period of 30 days for each violation of EMC 5.36.050(E) not listed in subsection (B)(1) of this section, EMC 5.36.060 or 5.36.080 through 5.36.140. In the event notices sent to the mailing address required by EMC 5.36.050(C)(1) are returned three times, the chief of police may suspend a permit to operate as provided by this subsection. The chief of police shall attempt delivery of further notices to persons operating the mobile food conveyance within the city limits.
C. Notice. When the chief of police concludes that grounds for denial, suspension, revocation or refusal to renew a permit to operate exist, he or she shall serve the applicant or permit holder, either personally or by certified mail addressed to the business or residential address of applicant or permit holder, with a notice of denial or notice of intent to suspend, revoke or refuse to renew permit. This notice shall state:
1. The reasons for the proposed action;
2. The effective date of the decision;
3. The right of the applicant or permit holder to a hearing; and
4. That the decision will be final if no hearing request is filed within 15 days from the mailing of the notice.
D. Hearings and Appeals. Hearings and appeals of the decision of the hearing examiner shall be conducted in the same manner provided by Chapter 8.20 EMC.
E. No permit granted herein shall confer any vested right to any person or business for more than the permit period. All mobile food vendors subject to this chapter shall comply with the provisions of this chapter as they may be amended hereafter. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007)
5.36.170 Sidewalk vendors.
A. In addition to the regulations applicable to solicitors and other generally applicable laws, a sidewalk vendor must not undertake any of the following:
1. Obstruct the flow of traffic in a manner that results in a violation of the Americans with Disabilities Act, forces pedestrian traffic into a street or other area where vehicles travel, or forces vehicular traffic to veer from its ordinary course of travel;
2. Operate in areas located within the immediate vicinity of a permitted certified farmers’ market or swap meet during the operating hours of the farmers’ market or swap meet as those terms are defined in Chapter 6.2 (commencing with Section 51036) of Part 1 of Division 1 of Title 5 of the Government Code;
3. Operate within the immediate vicinity of an area designated for a temporary use of, or encroachment on, the sidewalk or other public area for the duration of the temporary use or encroachment;
4. Operate without obtaining and displaying any valid certificate or other authorization required by the County of San Joaquin or without acquiring any license from a state or local agency required by law;
5. Maintain unsanitary conditions.
B. In addition to the regulations applicable to solicitors, a stationary sidewalk vendor must not undertake any of the following:
1. Vend in any park that has an agreement for concessions that exclusively permits the sale of food or merchandise by the concessionaire;
2. Vend in any area zone exclusively residential.
C. The chief of police may impose any conditions on a regulatory permit issued pursuant to this section which are required to ensure compliance with any relevant provisions of this code, ordinances of the city, or applicable law or regulation.
D. Enforcement of violations of this section will proceed in accordance with Chapter 6.2 (commencing with Section 51036) of Part 1 of Division 1 of Title 5 of the Government Code. (Ord. 585 § 2.3 (Exh. A), 2020)
5.36.180 Penalty.
A violation of this chapter shall constitute a public nuisance and an infraction. (Ord. 585 § 2.3 (Exh. A), 2020; Ord. 515 § 4, 2007. Formerly 5.36.170)