Chapter 5.22
REGULATION OF SIDEWALK VENDORS
Sections:
5.22.050 Operating conditions.
5.22.060 Prohibited activities and locations.
5.22.010 Purpose.
A. The purpose of this chapter is to establish a permitting and regulatory program for sidewalk vendors that complies with Senate Bill 946 (Chapter 459, Statutes 2018), codified as Government Code Section 51036 et seq. The provisions of this chapter allow the City to encourage small business activities by removing total prohibitions on portable food stands and certain forms of solicitation while still permitting regulation and enforcement of unpermitted sidewalk vending activities to protect the public’s health, safety and welfare.
B. The City Council hereby finds that to promote the public’s health, safety and welfare, restrictions on sidewalk vending are necessary to:
1. Ensure no unreasonable interference with the flow of pedestrian or vehicular traffic including ingress into, or egress from, any residence, public building, or place of business, or from the street to the sidewalk by persons exiting or entering parked or standing vehicles;
2. Provide reasonable access for the use and maintenance of sidewalks, pathways, poles, posts, traffic signs or signals, hydrants, firefighting apparatus and mailboxes, as well as access to locations used for public transportation services;
3. Reduce exposure to the City for personal injury or property damage claims and litigation; and
4. Ensure sidewalk vending activities occur only in locations where such activities would not restrict sidewalk and pathway access, including impeding access by individuals with disabilities. (Ord. 826 § 1, 2019)
5.22.020 Definitions.
As used in this chapter, the following terms and phrases shall have the meaning ascribed to them in this section, unless the context in which they are used clearly requires otherwise. If a term or phrase is not defined in this section, or elsewhere in this code, the most common dictionary definition is presumed to be correct.
A. “Alcoholic beverage” shall have the same meaning as defined in PMC 9.54.020(B), or any successor section.
B. “Cannabis” shall mean all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. “Cannabis” also means the separated resin, whether crude or purified, obtained from marijuana. “Cannabis” also means “cannabis products” and “cannabis accessories,” as defined by Sections 11018.1 and 11018.2 of the California Health and Safety Code, as may be amended from time to time. The term “cannabis” shall also have the same meaning as set forth in Section 19300.5(f) of the California Business and Professions Code, as may be amended from time to time.
C. “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, or any successor chapter.
D. “Curb face” means the vertical or sloping surface on the roadway side of the curb.
E. “Emergency vehicle access” means the roadway path or other surface that provides police or fire safety vehicular access from the dispatched point of origin to a facility, building, parcel, park or portion thereof. Emergency vehicle access includes, but is not limited to, fire lanes, public and private streets, parking lot lanes, access roadways, and walkways.
F. “Food” means any item provided in Health and Safety Code Section 113781, or any successor section.
G. “Hearing officer” means an individual designated by the City Manager to determine appeals pursuant to and in accordance with PMC 5.22.080.
H. “Heating element” means any device used to create heat for food preparation.
I. “Merchandise” means any item(s) that can be sold and immediately obtained from a sidewalk vendor which is not considered food. Items for rent shall not be considered merchandise.
J. “Park” means any area dedicated or established as a public park, including, without limitation, active and passive parks.
K. “Pedestrian pathway” or “pathway” means a paved path or walkway developed primarily for pedestrian travel, other than a sidewalk.
L. “Person” means and includes all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law trusts, societies, and individuals transacting and carrying on any business in the City.
M. “Public property” means all property owned or controlled by the City, including, but not limited to, alleys, parks, pathways, streets, parking lots, sidewalks, and walking trails.
N. “Residential” means any area zoned exclusively as residential in PMC Title 17, including without limitation the City’s RR-A through RR-C, RS-1 through RS-7, RC and RA zoning districts.
O. “Roaming sidewalk vendor” means a sidewalk vendor who moves from place to place and stops only to complete a transaction.
P. “Sidewalk” means that portion of a street, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel.
Q. “Sidewalk vending receptacle” means a pushcart, stand, display, wagon, showcase, rack, or nonmotorized conveyance used for sidewalk vending activities. “Sidewalk vending receptacle” shall not include pedal-driven carts.
R. “Sidewalk vendor” or “vendor” means a person(s) who sells food or merchandise from a sidewalk vending receptacle or from one’s person, upon a public sidewalk or pathway.
S. “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, installation, placement, or maintenance of any sidewalk vendor receptacles.
T. “Special event” means any temporary permitted event approved by the City.
U. “Stationary sidewalk vendor” means a sidewalk vendor who vends from a fixed location.
V. “Street” means a way or place of whatever nature, publicly maintained, within City public right-of-way, and open to the use of the public for purposes of vehicular travel.
W. “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.
X. “Temporary use permit” means any permit issued by the City of Poway for temporary uses (e.g., special event permits, temporary use permits, film permits, park or facility reservations).
Y. “Tobacco product” shall have the same meaning as defined in PMC 8.05.020, or any successor section. (Ord. 826 § 1, 2019)
5.22.030 Permit required.
A. Permit Required. No person, either for himself/herself or any other person, shall engage in any sidewalk vendor activities within the City without first applying for and receiving a permit from the City Manager, or his or her designee, in accordance with this chapter.
B. Application. A written application for a sidewalk vendor permit shall be filed with the City Manager, or his or her designee, on a form provided by the City and shall contain the following information:
1. The name, address, and telephone number of the person applying to become a sidewalk vendor;
2. A copy of a California driver’s license or identification card (or other photo identification deemed acceptable by the City), as well as a California driver’s license or identification card number, individual taxpayer identification number, or municipal identification number (which shall not be available to the public for inspection, is confidential, and shall not be disclosed except as required to administer the permit or comply with a State law or State or Federal court order);
3. The name, address, and telephone number of the person who will be in charge of any roaming sidewalk vendors, sidewalk vending activity and/or be responsible for the person(s) working at the sidewalk vending receptacle;
4. The name, address, and telephone number of all persons that will be employed as roaming sidewalk vendors or at a sidewalk vending receptacle;
5. The number of sidewalk vending receptacles the sidewalk vendor will operate within the City under the permit;
6. Whether the vendor intends to operate as a stationary sidewalk vendor or a roaming sidewalk vendor;
7. The day(s) and hours of operation the stationary sidewalk vendor intends to operate at such location(s);
8. The location(s) in the City where the stationary sidewalk vendor intends to operate;
9. The dimensions of the sidewalk vendor’s sidewalk vending receptacle(s), including a picture of each sidewalk vending receptacle operating under the permit;
10. Whether the sidewalk vendor will be selling food, merchandise, or both;
11. If the sidewalk vendor is selling food, a description of the type of food to be sold, whether such foods are prepared on site, and whether the vendor requires a heating element to prepare the food;
12. If the vendor is selling merchandise, a description of the merchandise to be sold;
13. A copy of the health permit required for any sidewalk vendors selling food, as required by the County of San Diego, PMC Title 8, or any successor chapter;
14. Proof of his or her possession of a valid California Department of Tax and Fee Administration seller’s permit, which shall be maintained during the pendency of the sidewalk vendor’s permit;
15. A statement disclosing whether the applicant has ever been convicted of any criminal offense(s) and an agreement to submit to a criminal background check, including Live Scan fingerprinting;
16. An acknowledgment that the sidewalk vendor will comply with all other generally applicable local, State, and Federal laws;
17. A certification that, to his or her knowledge and belief, the information contained within the application is true and correct;
18. An agreement by the sidewalk vendor to defend, indemnify, release and hold harmless the City, its City Council, boards, commissions, officers and employees from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relating (directly or indirectly) to the permit or the vendor’s sidewalk vending activities. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys’ fees, and other expenses incurred in connection with such claim, action, or proceeding whether incurred by the permittee, City, and/or the parties initiating or bringing such proceeding;
19. An acknowledgement that the sidewalk vendor’s use of public property is at their own risk, the City does not take any steps to ensure public property is safe or conducive to the sidewalk vending activities, and the sidewalk vendor uses public property at his or her own risk;
20. An acknowledgment by the sidewalk vendor that he or she will obtain, and at all times during the duration of the permit maintain, any insurance of such types and in such amounts as required by the City’s Risk Manager; and
21. Any other relevant information required by the City Manager.
C. Application and Permit Fees. Each application for a sidewalk vendor permit shall be accompanied by an application fee as established by resolution of the City Council. The application and permit are only applicable to the individual(s) named on the application. If said permit is approved, it shall not be necessary for the permittee to obtain a City business certificate to carry on the activities authorized by said permit, unless such permittee maintains a permanent place of business within the City. (Ord. 826 § 1, 2019)
5.22.040 Issuance of permit.
A. Within 30 calendar days of receiving a complete application, the City Manager may issue a sidewalk vendor permit, with appropriate conditions, as provided for herein, if he or she finds based on all of the relevant information that:
1. The conduct of the sidewalk vendor will not unduly interfere with traffic or pedestrian movement (specifically including but not limited to complying with PMC Title 15 pedestrian clearances), or tend to interfere with or endanger the public peace or rights of nearby residents to the quiet and peaceable enjoyment of their property, or otherwise be detrimental to the public peace, health, safety or general welfare;
2. The conduct of the sidewalk vendor will not unduly interfere with normal governmental or City operations, threaten to 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 vendor;
3. The conduct of such sidewalk vending activity will not constitute a fire hazard, and all proper safety precautions will be taken;
4. The conduct of such sidewalk vending activity will not require the diversion of law enforcement personnel to properly police the area of such activity as to interfere with normal police protection for other areas of the City;
5. 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;
6. The sidewalk vendor has not had a permit revoked within the same calendar year;
7. The sidewalk vendor’s application contains all required information;
8. The sidewalk vendor has not made a materially false, misleading, or fraudulent statement of fact to the City in the application process;
9. The sidewalk vendor has satisfied all the requirements of this chapter;
10. The sidewalk vendor has paid all applicable fees as set by City Council resolution;
11. The sidewalk vendor’s sidewalk vending receptacle and proposed activities conform to the requirements of this chapter;
12. The sidewalk vendor has adequate insurance to protect the City from liability associated with the sidewalk vendor’s activities, including the naming of the City as an additional insured, as determined by the City’s Risk Manager; and
13. The vendor has satisfactorily provided all information requested by the City Manager to consider the vendor’s application.
B. A sidewalk vendor permit is nontransferable. Any change in ownership or operation of a sidewalk vendor or sidewalk vending receptacle requires a new permit under this chapter.
C. All permits issued under this chapter, regardless of when issued, expire on December 31st of the year in which they were issued. (Ord. 826 § 1, 2019)
5.22.050 Operating conditions.
All sidewalk vendors are 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 sidewalk vendor receptacle or carried by the sidewalk vendor. Food and merchandise shall not be stored, placed, or kept on any public property. If affixed to the sidewalk vendor receptacle, the overall space taken up by the sidewalk vendor receptacle shall not exceed the size requirements provided in this section.
B. The sidewalk vendor permit shall be displayed conspicuously at all times on the sidewalk vending receptacle or the sidewalk vendor’s person. If multiple sidewalk vendors are staffing a sidewalk vendor receptacle or working as roaming sidewalk vendors, each person shall wear their permit on their person in a conspicuous manner.
C. Sidewalk vendors shall not leave their sidewalk vending receptacle unattended to solicit business for their sidewalk vending activities. Sidewalk vending receptacles shall not be stored on public property and shall be removed when not in active use by a vendor.
D. All sidewalk vendors shall allow any law enforcement official, firefighter, life safety services officer, or code enforcement officer, at any time, to inspect their sidewalk vending receptacle for compliance with the size requirements of this chapter and to ensure the safe operation of any heating elements used to prepare food.
E. Sidewalk vending receptacles shall not exceed a total height of three feet, a total width of three feet, and a total length of three feet.
F. No sidewalk vending receptacle shall be motorized or pedal-driven.
G. If a sidewalk vending receptacle requires more than one person to conduct the sidewalk vending activity, all sidewalk vendors associated with the sidewalk vending receptacle shall be within five feet of the sidewalk vending receptacle when conducting sidewalk vending activities.
H. Sidewalk vendors that sell food shall maintain a trash container in or on their sidewalk vending receptacle and shall not empty their trash into public trashcans. The size of the vendor’s trash container shall be taken into account when assessing the total size limit of a sidewalk vending receptacle.
I. Sidewalk vendors shall maintain sanitary conditions in the 10-foot radius around and within the vicinity of the vendor and shall not leave any location without returning the location to the condition when the sidewalk vendor first arrived at the location, by, including, but not limited to, picking up, removing, and disposing of all food, grease or other fluid, item, trash or refuse from their operation. Any disposal activities must comply with Chapter 13.09 PMC and all other applicable stormwater law, rules and regulations, as well as all applicable law, rules and regulations relating to public health and safety.
J. Sidewalk vendors shall maintain a minimum four-foot clear accessible path free from obstructions, including sidewalk vending receptacles and customer queuing area.
K. Sidewalk vendors shall comply with the noise standards provided in Chapter 8.08 PMC, and any successor sections. Additionally, all use of sound amplification, music, live entertainment, bells, whistles, and horns is prohibited when vending in residential areas.
L. Sidewalk vendors shall not approach persons to sell food or merchandise and shall not interfere, in any way, with anyone engaged in an activity to sell food or merchandise.
M. Sidewalk vendors shall not vend to or otherwise conduct transactions with persons in moving vehicles or vehicles parked or stopped.
N. No freestanding commercial signs are permitted, as set forth in Chapter 17.40 PMC. Sidewalk vendors shall not affix, employ or otherwise use a light display of any kind in connection with sidewalk vending activities, specifically including but not limited to flashing or animated lights. (Ord. 826 § 1, 2019)
5.22.060 Prohibited activities and locations.
A. Sidewalk vendors shall comply with all operating conditions, including those conditions set forth in PMC 5.22.050.
B. Sidewalk vendors shall not engage in any of the following activities:
1. Renting merchandise to customers.
2. Displaying merchandise or food that is not available for immediate sale.
3. Selling, processing, cultivating, distributing and/or delivering adult-oriented material, tobacco products, alcoholic beverages, drugs of any kind, pharmaceuticals, or cannabis, including medical and recreational marijuana and related merchandise or paraphernalia.
4. Using an open flame on or within any sidewalk vending receptacle.
5. All sidewalk vendors, regardless of whether a roaming sidewalk vendor or stationary sidewalk vendor, are prohibited from conducting sidewalk vending activities between the hours of 10:00 p.m. and 7:00 a.m. daily. In parks, sidewalk vending activities will end at 10:00 p.m. or one hour before park closure, whichever is earlier. In residential areas, all stationary sidewalk vending is prohibited. In residential areas, roaming sidewalk vending activity is prohibited between the hours of 6:00 p.m. or sunset, whichever is earlier, and 9:00 a.m. of the following day, Monday through Saturday, inclusive, and all day on Sundays and Federal holidays.
6. Continuing to offer food or merchandise for sale, following, or accompanying any person who has been offered food or merchandise after the person has asked the vendor to leave or after the person has declined the offer to purchase food or merchandise.
7. Knowingly making false statements or misrepresentations during the course of offering food or merchandise for sale.
8. Blocking or impeding the path of the person(s) being offered food or merchandise to purchase.
9. 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.
10. Touching the person(s) being offered to purchase food or merchandise without that person(s)’ consent.
11. Selling of animals of any kind.
C. Sidewalk vendors shall not engage in sidewalk vending activities at the following locations:
1. Within 12 inches of any curb face on all roads.
2. Within 15 feet of any entrance or exit to a building, structure or facility.
3. On any designated emergency vehicle accessway.
4. Any public property that does not meet the definition of a sidewalk including without limitation any alley, courtyard, unpaved trail, street, roadway or parking lot.
5. Within 200 feet of an area designated for a temporary special permit issued by the City, during the limited duration of the temporary special permit. If the City provides any notice, business interruption mitigation, or other rights to affected businesses or property owners under the City’s temporary special permit, such notice will also be provided to any sidewalk vendors specifically permitted to operate in the area, if applicable.
6. Within 200 feet of the Poway Center for the Performing Arts, located at 15498 Espola Road, from the time period commencing two hours before any ticketed event (including without limitation any play, performance, or concert) at the Poway Center for the Performing Arts is scheduled to begin, until two hours after that event has ended.
7. At the Blue Sky Ecological Reserve or Iron Mountain trailhead, specifically including but not limited to all associated parking lots, both of which were created and are maintained to allow residents and visitors to enjoy the natural landscape and habitat of myriad species of flora and fauna. Permitting any commercial sidewalk vending in the reserve would not only diminish the public’s use and enjoyment of natural resources and recreational activities, such sidewalk vending activity will create an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the reserve.
8. On any private property without the express written consent of the owner or lessee of the property.
9. Sidewalk vendors shall not engage in sidewalk vending activities within 50 feet of another sidewalk vendor.
10. Sidewalk vendors shall not engage in sidewalk vending activities within 100 feet of the property line of a school, a place of worship, or a child day care facility.
11. Sidewalk vendors shall not engage in sidewalk vending activities within 200 feet of a permitted certified farmers’ market or swap meet during the limited operating hours of that certified farmers’ market or swap meet.
12. Stationary sidewalk vending activities shall only occur on sidewalks or pathways with a minimum width of eight feet or larger.
13. Sidewalk vendors shall not engage in sidewalk vending activities within 25 feet of a:
a. Fire hydrant;
b. Curb which has been designated as yellow or red zone, or a bus zone;
c. Automated teller machine;
d. Driveway, alley, or street corner;
e. Trash or recycling receptacles, bike racks, benches, bus stops or similar public use items; and
f. Public art objects, items, and displays.
14. Sidewalk vendors shall not engage in sidewalk vending activities that would violate provisions of this code relating to visibility requirements for streets, alleys, driveways, and intersections.
15. Stationary sidewalk vendors shall not sell food or merchandise or engage in any sidewalk vending activities at any park where the City has signed an agreement for concessions that exclusively permits the sale of food or merchandise by a concessionaire.
16. On any sidewalk with a gradient in excess of 10 percent.
17. Within 200 feet of any public safety facility, including without limitation police stations and fire stations.
18. Within 24 inches of a parallel parking space.
19. On any sidewalk not adjacent to a State highway where vending equipment and queuing patrons would reduce clearance to less than four feet.
20. On any sidewalk adjacent to a State highway where vending equipment and queuing patrons would reduce clearance to less than five feet, with temporary restrictions of no less than three feet.
21. On any sidewalk where vending equipment and queuing patrons would restrict access requirements under the Americans with Disabilities Act.
22. On any sidewalk where vending equipment and queuing patrons would jeopardize the fire or life safety of any person.
D. Sidewalk vending receptacles shall not touch, lean against or be affixed at any time to any building or structure including, but not limited to, lampposts, parking meters, mailboxes, traffic signals, fire hydrants, benches, bus shelters, newsstands, trashcans, or traffic barriers. (Ord. 826 § 1, 2019)
5.22.070 Penalties.
A. Violations of this chapter shall not be prosecuted as infractions or misdemeanors and shall only be punished by the following administrative fine and rescission provisions.
B. Any violation of this chapter may 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; and
3. An administrative fine not exceeding $500.00 for each additional violation within one year of the first violation.
C. If a sidewalk vendor violates any portion of this chapter and cannot present the citing officer with a proof of a valid permit, the sidewalk vendor may be punished by:
1. An administrative fine not exceeding $250.00 for a first violation;
2. An administrative fine not exceeding $500.00 for a second violation within one year of the first violation; and
3. An administrative fine not exceeding $1,000 for each additional violation within one year of the first violation.
D. Upon proof of a valid permit issued by the City, the administrative fines set forth in subsection C of this section shall be reduced to the administrative fines set forth in subsection B of this section, or any successor sections.
E. The City Manager, or his or her designee, may rescind a permit issued to a sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations. (Ord. 826 § 1, 2019)
5.22.080 Appeals.
A. Decisions to deny an application for a permit or to impose administrative fines may be appealed by any interested person. Appeals shall be heard and determined by the hearing officer.
B. Appeals shall be initiated within 10 calendar days of the decision or imposition of administrative fine. If the tenth day falls on Saturday, Sunday, or another day when City Hall is closed, the deadline shall be extended to 5:00 p.m. of the next working day. Appeals of a decision to deny an application for a permit shall be accompanied by a fee as established by resolution of the City Council. Notwithstanding any other provision of law, a person appealing an administrative fine is not required to pay the administrative fine as a prerequisite to filing an appeal.
C. Appeals of decisions or administrative fines shall be made in writing to the hearing officer. The appeal must be legible and set forth:
1. The appellant’s full name, address and phone number;
2. The subordinate entity;
3. The date of the determination;
4. The determination for which review is sought;
5. The appellant’s interest in the appealed determination; and
6. Each reason why the appellant appeals the determination.
D. Decisions regarding administrative fines that are appealed shall not become effective until the appeal is resolved.
E. An insufficient appeal shall be returned to the appellant.
F. If the appeal is sufficient, the City Clerk shall set the appeal for a hearing before the hearing officer within 30 calendar days of the filing of the appeal unless both the appellant and the hearing officer consent to a later date.
G. The hearing officer shall give notice in writing to the appellant of the time and location of the appeal hearing. At the hearing, the hearing officer shall review the record of the decision or administrative fine and hear testimony of the appellant, if any, the applicant and any other interested party. The appeal shall be reviewed and determined on a de novo basis.
1. If an administrative fine is the subject of an appeal, the hearing officer shall take into consideration the person’s ability to pay the fine. The hearing officer 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 or before the hearing or while the administrative fine remains unpaid.
2. If the person meets the criteria described in Government Code Section 68632(a) or (b), or any successor section, the hearing officer shall accept, in full satisfaction, 20 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.
H. After the hearing, the hearing officer shall affirm, modify or reverse the original decision or administrative fine. When a decision or administrative fine is modified or reversed, the hearing officer shall state the specific reasons for modification or reversal. Decisions on appeals shall be rendered within 30 calendar days of the close of the hearing. The hearing officer shall mail notice of a decision to the appellant. Such notice shall be mailed within five working days after the date of the decision to the appellant. The decision of the hearing officer shall be final. (Ord. 826 § 1, 2019)