AGENDA REPORT
Meeting Date: February 21, 2023
Item Number:
To: Honorable Mayor & City Council
From: Cynthia Owens, Municipal Affairs Program Manager
Laurence Wiener, City Attorney
Subject: AN ORDINANCE OF THE CITY OF BEVERLY HILLS AUTHORIZING
THE CITY MANAGER TO REMOVE CERTAIN CURBSIDE PICKUP
ZONES, READOPTING CITY MANAGER AUTHORITY TO ISSUE
PERMITS FOR OUTDOOR DINING, READOPTING WAIVER OF
SPECIAL EVENT PERMIT FEES AND REQUIREMENTS FOR
OUTDOOR DINING AND ADDING ARTICLE 8 TO CHAPTER 4 OF
TITLE 4 OF THE BEVERLY HILLS MUNICIPAL CODE; AND MAKING
FINDINGS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT
Attachment: 1. Ordinance No. 23-O-____
RECOMMENDATION
Staff recommends the City Council:
1) Move to waive the full reading of the ordinance and that the ordinance entitled “AN ORDINANCE OF THE CITY OF BEVERLY HILLS AUTHORIZING THE
CITY MANAGER TO REMOVE CERTAIN CURBSIDE PICKUP ZONES,
READOPTING CITY MANAGER AUTHORITY TO ISSUE PERMITS FOR
OUTDOOR DINING, READOPTING WAIVER OF SPECIAL EVENT PERMIT
FEES AND REQUIREMENTS FOR OUTDOOR DINING AND ADDING ARTICLE 8 TO CHAPTER 4 OF TITLE 4 OF THE BEVERLY HILLS MUNICIPAL CODE” be introduced and read by title only; and
2) Make findings the ordinance is exempt from the California Environmental Quality Act.
INTRODUCTION
At the formal meeting of the City Council on February 7, 2023, the City Council provided direction to staff on retaining certain emergency regulations that were established during COVID-19 to aid the City’s businesses prior to the City Council declaring an end to the G-3
Meeting Date: February 21, 2023
City’s state of emergency. This item presents an ordinance to the City Council, which will amend the Beverly Hills Municipal Code (“BHMC”) to incorporate the direction staff received at that meeting.
DISCUSSION
On March 15, 2020, the City Manager proclaimed the existence of a local state emergency to ensure the City could effectively respond to the COVID-19 pandemic. The City Council ratified the state of emergency on March 16, 2020. Thereafter, the Council adopted Ordinance No. 20-O-2805, which was superseded from time to time. That ordinance and its amendments implemented emergency regulations to ease financial burdens on businesses and residents and slow the spread of the virus.
With the end of the Governor’s state of emergency of February 28, 2023, the suspension of Government Code 8630 will end. Government Code Section 8630 requires the City to review the continuing need for a local emergency every 60 days. As such, the City either needs to end the local state of emergency prior to April 29, 2023 or the City Council will need to review and make findings to continue the local declaration of a state of emergency beyond that date in order to keep certain emergency regulations in place.
As a step towards ending the local state of emergency, staff reviewed emergency regulations established by the City Council during COVID-19 on February 7, 2023 and requested direction from the City Council on which regulations the City Council wished to keep in place. The following is a brief overview and summary of the direction provided by the City Council at that meeting.
Relaxed Enforcement of Non-Conforming Signage
The City Council decided to no longer allow for the relaxed enforcement of nonconforming signage for businesses. This includes non-conforming signage such as Aframe signs on the sidewalk, sandwich board signs on the sidewalk, hanging banners, oversized signs etc. Staff is currently developing an outreach and education strategy for businesses so they are aware of what constitutes non-conforming signage. Staff will provide 30 days’ notice to the businesses with a specific date of when the City will resume enforcing the City’s laws on non-conforming signage so the business may avoid any enforcement actions by the City.
Delegation of Authority to the City Manager to Oversee, Review, and Eliminate any Currently Designated Curbside Pickup Zones
On February 7, the City Council clearly indicated a desire to lessen the number of designated curbside pickup zones in Beverly Hills. Staff has developed four criteria, whereby only one of the criteria needs to be met in order for the City Manager to direct staff to remove the curbside loading zone. These four criteria are:
1) Misuse of the loading zone by the associated businesses. This includes, but is not limited to:
a. Allowing vehicles to be parked in the curbside loading area longer than the time it takes to pick up their online order
b. Store employees prohibiting the use of the slot for pick up from other adjacent and/or nearby stores
c. Reserving the curbside pickup zones for certain clientele. 2) The curbside pickup zone is no longer reasonably necessary to accommodate the needs of nearby businesses;
3) Substantial impacts on traffic; and
4) The demand for parking in the area outweighs the demand for curbside pickup Meeting Date: February 21, 2023
Additionally, staff will begin to thoroughly examine the current 41 curbside pickup zones locations in order to outline potential paths forward on this particular program for presentation to the City Council for direction at a later date.
Delegation of Authority to the City Manager to Issue Street Closure Permits and Other Permits Necessary to Allow Outdoor Dining as well as Direction to Waive Fees and the Minimum Period for Filing an Application for a Special Event Permit for Temporary Outdoor Dining
A majority of the City Council on February 7 recommended (1) the delegation of authority to the City Manager to issue street closure permits and other permits necessary to allow outdoor dining to continue and (2) to continue waiving the fees and minimum period for filing a Special Event Permit application for temporary outdoor dining while the two City Council OpenBH Liaison Committees format and finalize recommendations for this program to continue in the city. One Committee is providing direction on charging fees for the use of the City’s public right of way by businesses interested in participating in the program while the other Committee is providing direction on design and operating standards.
These two items are included in the ordinance and can be revisited when the OpenBH Liaison Committee recommendations are presented to the City Council. Prior direction by the City Council included that the temporary no-fee OpenBH program be extended to September 30, 2023 while the subcommittees continue to meet. This recommendation aligns with that prior direction and once the temporary no-fee OpenBH program is converted to a long-term fee-based program this recommendation regarding the City Manager’s authority can be adjusted.
Establishing Maximum Fees for Third-Party Food Delivery Services The City Council approved the permanent establishment for restricting the maximum fees a third party food delivery services, such as Uber Eats, Postmates and Doordash, may charge a restaurant and the person they are delivering food to. The restrictions in the ordinance are:
1) A third party food delivery service is limited to charging 15% of the purchase price for delivery fees and 5% of the purchase price for all other fees and costs; 2) A third party food delivery service may not charge customers more than the restaurant’s listed prices and must provide an itemized breakdown of the costs and fees associated with each order; and
3) All tips and gratuity shall be given to the person delivering the food.
If the first reading of the ordinance occurs tonight, then the second reading and adoption will occur on March 7, 2023 with an effective date of April 6, 2023. By introducing the ordinance tonight, the City Council ensures there is no lapse in the emergency regulations that the City Council desires to continue forward after the end of the local state of emergency. The City Council could then decide to end the local state of emergency on April 18, 2023, which is within the 60 day period allowed for under Government Code Section 8630.
California Environmental Quality Act (“CEQA”)
This Ordinance is exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3), which is the general rule that CEQA applies only to projects which have the potential to cause a significant effect on the environment. CEQA does not apply where it can be seen with certainty that there is no possibility that the activity may have a Meeting Date: February 21, 2023
significant effect on the environment. It can be seen with certainty that granting the City Manager the authority to remove certain curbside pickup zones, and the continued waiver of Special Event Permit fees and requirements and grant of authority to the City Manager to issue permits for temporary outdoor dining, as well as the enactment of regulations on third-party food delivery services will not cause a significant effect on the environment. In addition, these regulations do not constitute a project that is subject to the provisions of CEQA, pursuant to CEQA Guidelines Section 15378(b)(2) and (b)(5).
FISCAL IMPACT
There is little to no anticipated fiscal impact with ending the relaxed enforcement for non-conforming signage.
There is a fiscal impact for allowing the curbside pickup program to continue.
Currently, there are 41 parking meters set aside for the curbside pickup program.
Based on the average revenue generated in 2019 at the parking meters in the Business Triangle, South Beverly, Burton Way, North Robertson, and South Robertson, staff estimates the average monthly loss of revenue for all curbside pickup parking meters combined is $11,315.24 with a total estimated annual loss of revenue of $135,782.89. This information is reflected in the table below.
Location of
Curbside
Pickup Meters
Average
Revenue Per
Meter Per
Month
Number
of Meters
Total Average
Monthly
Revenue
Total Average
Revenue
Annually
Business
Triangle $ 289.75 28 $ 8,113.00 $ 97,356.00
S. Beverly $ 300.10 9 $ 2,700.87 $ 32,410.45
Burton Way $ 95.20 2 $ 190.40 $ 2,284.80
N. Robertson $ 130.49 1 $ 130.49 $ 1,565.88
S. Robertson $ 180.48 1 $ 180.48 $ 2,165.76
Totals 41 $ 11,315.24 $ 135,782.89
The fiscal impact for continuing to waive fees for a Special Event Permit application for temporary outdoor dining as well as the revenue loss from the closure of parking meters was outlined in the December 6, 2022 Study Session report to the City Council. The costs for allowing the OpenBH program to continue for nine months (from January 1, 2023 through September 30, 2023) was estimated at $1,062,684. During these months, there are two City Council Liaison Committees discussing what fees should be charged and what the draft design and operating standards will be.
Finally, there is no anticipated fiscal impact to the permanent establishment of the maximum fees a third party food delivery service can charge.
Nancy Hunt-Coffey
City Manager
Approved By
Attachment 1
B0785-0001\2779195v2.doc
ORDINANCE NO. 23-O- _____
AN ORDINANCE OF THE CITY OF BEVERLY HILLS
AUTHORIZING THE CITY MANAGER TO REMOVE CERTAIN
CURBSIDE PICKUP ZONES, READOPTING CITY MANAGER
AUTHORITY TO ISSUE PERMITS FOR OUTDOOR DINING,
READOPTING WAIVER OF SPECIAL EVENT PERMIT FEES AND
REQUIREMENTS FOR OUTDOOR DINING AND ADDING ARTICLE
8 TO CHAPTER 4 OF TITLE 4 OF THE BEVERLY HILLS
MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF BEVERLY HILLS HEREBY ORDAINS AS FOLLOWS:
WHEREAS, international, national, state and local health and governmental authorities have responded to an outbreak of respiratory disease caused by a novel coronavirus named “SARSCoV-2” and the disease it causes has been named “coronavirus disease 2019,” abbreviated COVID-19, (“COVID-19”); and
WHEREAS, on March 15, 2020, the City Manager, in his role as the Director of Emergency Services, proclaimed the existence of a local emergency pursuant to Section 2-4- 107 of the Beverly Hills Municipal Code to ensure the availability of mutual aid and an effective City response to the novel coronavirus (“COVID-19”) and that state of emergency was ratified by the City Council on March 16, 2020 (“local state of emergency”); and WHEREAS, restaurants located within the City were prohibited from offering dine-in service, limiting restaurants to delivery and takeout offerings only, which placed a sudden and severe financial strain on many restaurants, adding to the financial pressures in the industry that predated the COVID-19 crisis. In response, the City of Beverly Hills adopted measures to try to mitigate the impacts of the pandemic on businesses in the City by waiving certain fees, and authorizing the use of parking spaces and street closures for temporary outdoor dining spaces and pick-up operations, as well as regulating fees imposed on restaurants by Third-Party Food Delivery services; and
WHEREAS, upon the end of the local state of emergency, these measures shall cease to be effective; and
WHEREAS, the City Council finds that designated curbside pickup zones have benefited both local businesses and their consumers, but some zones have also reduced parking availability and increased traffic congestion in the City, been misused by businesses for purposes other than order pick-ups, and may no longer be necessary to support businesses’ pick-up operations; and WHEREAS, outdoor dining generates business and creates vibrant community spaces in the City. The City Manager’s continued ability to issue street closure and other permits, and the waiver of Special Event Permit fees and other requirements, will facilitate outdoor dining and benefit both businesses and consumers alike; and
WHEREAS, the use of third-party applications and websites to place orders with restaurants for delivery and takeout remains popular amongst consumers even after in-person dining has resumed; and
-2-
B0785-0001\2779195v2.doc
WHEREAS, prior to the City’s emergency regulations, third-party platforms often charged restaurants fees ranging from 30% to 40% of the purchase price per order; and WHEREAS, restaurants, and particularly restaurants that are small businesses, have limiting bargaining power to negotiate lower fees with third-party platforms, given the high market saturation of third-party platforms; and
WHEREAS, permanently capping per-order fees will ensure restaurants in the City receive reasonable revenue from orders placed by consumers, while not unduly burdening thirdparty platforms that continue to be in high demand.
Section 1. The City Manager is authorized to review existing curbside pickup zones and remove zones that meet one or more of the following conditions:
1. the curbside pickup zone is no longer reasonably necessary to accommodate the business needs of the nearby businesses;
2. the demand for parking in the immediate area outweighs the demand for a curbside pickup zone;
3. the curbside pickup zone significantly impacts traffic in the area; or
4. a nearby business has misused the curbside pickup zone.
Section 2. The City Manager is authorized to issue street closure permits and any other permits necessary to allow for temporary outdoor dining.
Section 3. The City shall waive fees associated with a Special Event Permit for temporary outdoor dining and shall waive the minimum ten (10) day period for filing an application for a Special Event Permit for temporary outdoor dining.
Section 4. Article 8 (“Third-Party Food Delivery Services”) is hereby added to of Chapter 4 (Other Regulations for Specific Types of Businesses and Activities) of Title 4 (Regulation of Certain Types of Businesses and Activities) of the Beverly Hills Municipal Code to read as follows:
“Article 8. Third-Party Food Delivery Services
Section 4-4-801. Definitions.
Delivery Fee: A fee charged by a Third-Party Food Delivery Service for providing a Retail Food Establishment with a service that delivers food and beverages from such establishment to customers. The term does not include any other fee or cost that may be charged by a Third-Party Food Delivery Service to a Retail Food Establishment, such as fees for listing or advertising the Retail Food Establishment on the Third-Party Food Delivery Service platform or fees related to processing the online order including, but not limited to service fees, fees for facilitating Online Orders for pick-up, and credit card processing fees.
Online Order: An order placed by a customer, including a phone order, for delivery or pick-up from a restaurant located within the City.
-3-
B0785-0001\2779195v2.doc
Purchase Price: The menu price of the items contained in an Online Order, minus any applicable coupon or promotional discount provided to the customer by the restaurant through the Third-Party Food Delivery Service. Such term therefore excludes taxes, gratuities and any other fees or costs that may make up the total amount charged to the customer of an Online Order.
Retail Food Establishment: A restaurant, delicatessen, bakery, coffee shop, or other eat-in or carryout service of processed or prepared raw and ready-to-eat food or beverages.
Third-Party Food Delivery Service: Any website, mobile application or other internet service that offers or arranges for the sale of food and beverages prepared by, and the delivery or pick-up of food and beverages from no fewer than twenty (20) separately owned and operated food service establishments.
Section 4-4-802. Prohibitions.
It shall be unlawful for a Third-Party Food Delivery Service to do the following:
A. Charge a Retail Food Establishment a Delivery Fee that totals more than fifteen percent (15%) of the Purchase Price of each Online Order.
B. Charge a Retail Food Establishment any amount designated as a Delivery Fee for an Online Order that does not involve the delivery of food or beverages.
C. Charge a Retail Food Establishment any combination of fees, commissions, or costs for the Retail Food Establishment’s use of the Third-Party Food Delivery Service that is greater than five percent (5%) of the Purchase Price of each Online Order or to charge any amount of fees, commissions, or costs for the Retail Food Establishment’s use of the ThirdParty Food Delivery Service unless the contract between the Retail Food Establishment and the Third-Party Food Delivery Service allows for fees, commissions, and costs other than a Delivery Fee. For the purpose of this subsection, fees, commissions, or costs do not include the Delivery Fee, which is capped at fifteen percent (15%).
D. Charge a Retail Food Establishment any fee, commission, or cost other than as permitted in subsections A through C, above.
E. Charge a customer any Purchase Price for a food or beverage item that is higher than the price imposed by the Retail Food Establishment on the Third-Party Food Delivery Service or, if no price is imposed by the Retail Food Establishment on the Third-Party Food Delivery Service, the price listed on the Retail Food Establishment’s own menu.
F. Retain any portion of amounts designated as a tip or gratuity. Any tip or gratuity shall be paid by the Third-Party Food Delivery Service, in its entirety, to the person delivering the food or beverages.
Section 4-4-803. Disclosures.
-4-
B0785-0001\2779195v2.doc
The Third-Party Food Delivery Service shall disclose to the customer an accurate, clearly identified, and itemized cost breakdown of each transaction, including, but not limited to the following:
A. The Purchase Price of the food and beverages at the cost listed on the Retail Food Establishment’s menu.
B. The Delivery Fee charged to the Retail Food Establishment.
C. Each fee, commission, or cost, other than a Delivery Fee, charged to the Retail Food Establishment.
D. Each fee, commission, or cost, other than the Delivery Fee or the Purchase Price of the food, charged to the customer by the Third-Party Food Delivery Service.
E. Any tip or gratuity that will be paid to the person delivering the food or beverages.
Section 4-4-804. Violations.
If a Third-Party Food Delivery Service charges a Retail Food Establishment fees that violate this Section, the Retail Food Establishment shall provide written notice to the Third-Party Food Delivery Service requesting a refund within seven days. If the Third-Party Food Delivery Service does not provide the refund requested after seven days or the Third-Party Food Delivery Service continues to charge fees in violation of this Section after the initial notice and seven-day cure period, a Retail Food Establishment may enforce this Section by means of a civil action seeking damages and injunctive relief. The prevailing party in any such action shall be entitled to an award of reasonable attorney fees.”
Section 5. Sections 1 through 3 of this Ordinance shall not be codified.
Section 6. CEQA. This Ordinance is exempt from the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines Section 15061(b)(3) which is the general rule that CEQA applies only to projects which have the potential to cause a significant effect on the environment, and CEQA does not apply where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment. It can be seen with certainty that granting the City Manager the authority to remove certain curbside pickup zones, and the continued waiver of Special Event Permit fees and requirements and grant of authority to the City Manager to issue permits for temporary outdoor dining, as well as the enactment of regulations on third-party food delivery services will not cause a significant effect on the environment. In addition, these regulations do not constitute a project that is subject to the provisions of CEQA, pursuant to CEQA Guidelines Section 15378(b)(2) and (b)(5).
Section 7. Severability. If any provision of this Ordinance is held invalid by a court of competent jurisdiction, such provision shall be considered a separate, distinct and independent provision and such holding shall not affect the validity and enforceability of the other provisions of this Ordinance.
-5-
B0785-0001\2779195v2.doc
Section 8. Publication. The City Clerk shall cause this Ordinance to be published at least once in a newspaper of general circulation published and circulated in the city within fifteen (15) days after its passage in accordance with Section 36933 of the Government Code, shall certify to the adoption of this Ordinance and shall cause this Ordinance and the City Clerk’s certification, together with proof of publication, to be entered in the Book of Ordinances of the Council of this City.
Section 9. Effective Date. This Ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the thirty-first (31st) day after its passage.
Section 10. Certification. This City Clerk shall certify to the adoption of this Ordinance.
Adopted:
Effective:
LILI BOSSE
Mayor of the City of Beverly Hills,
California
ATTEST:
(SEAL)
HUMA AHMED
City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
LAURENCE S. WIENER NANCY HUNT-COFFEY
City Attorney City Manager