ORDINANCE NO. ___
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA,
COUNTY OF SAN BERNARDINO, CALIFORNIA, ADDING FONTANA
MUNICIPAL CODE SECTION S 1-14 (ENFORCEMENT OBSTRUCTION
CONSEQUENCES) AND 15-829 (IMPOUNDMENT) TO HELP PROTECT
THE CITY’S COMMUNITY BY MORE EFFECTIVELY REGULAT ING
SALE OF FOOD, GOODS, AND MERCHANDISE CREATING A HEALTH
AND SAFETY DANGER
WHEREAS, California Constitution, article XI, section 7, authorizes the City of Fontana (“City”) to adopt and enforce local police, sanitary, and other ordinances and regulations that are not in conflict with the general laws.
WHEREAS, Senate Bill number 946, including Government Code section 51038, authorizes the City to regulate sidewalk vending to help protect public health and safety.
WHEREAS, The City has previously adopted Fontana Municipal Code (“FMC”) chapter 15, article XVII [Sidewalk Vending] to regulate sidewalk vending within the City.
WHEREAS, The City now desires to add FMC sections 1-14 [Enforcement Obstruction Consequences] and 15 -829 [Impoundment] to help protect the City’s community by more effectively regulating sale of food, goods, and merchandise creating a health and safety danger.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FONTANA DOES ORDAIN AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein.
SECTION 2. FMC section 1-14 (Enforcement Obstruction Consequences) is hereby added, and is to read in its entirety as follows:
1-14 Enforcement Obstruction Consequences
It shall be unlawful for any person to obstruct, impede, threaten, follow, intimidate, or interfere in any way with any City official including a code compliance officer or inspector, police officer, firefighter, or other officers or employees of this City engaged in the performance of their respective duties, job description, and/or enforcement authority as provided in the Fontana Municipal Code. Such person shall be guilty of a misdemeanor and, upon conviction thereof, unless provision is otherwise herein made by any other applicable State law, shall be subject to a fine of not more than $1,000 or by imprisonment in the County Jail for a period of not more than six months, or by both fine and imprisonment.
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SECTION 3. FMC section 15-829 (Impoundment) is hereby added, and is to read in its entirety as follows:
15-829 Impoundment
(a) "Impound" means to seize or take custody of a sidewalk vending cart, equipment, food, utensils, goods, flowers, toys, furniture, or merchandise (collectively "Items") because of a violation of any applicable law or regulation. (b) Impoundment Authorization. Any City official, including a code compliance officer or inspector , police officer, firefighter, fire prevention specialist , or examiner may impound a Sidewalk Vendor's vending cart, equipment, food, utensils, goods, flowers, toys, furniture, or merchandise (collectively "Items") used in violation of this Article pursuant to the provisions of Section 2080.10 of the California Civil Code, Section 114393 of the California Health and Safety Code , and/or any other applicable City, County, or State law for any of the following reasons:
(1) Food displayed, offered, or made available for sale , including equipment or utensils used by a Sidewalk Vendor, without holding a valid and displayed Health Permit from the San Bernardino County Health Department in violation of County or State law.
(2) Items reasonably appear to be unattended or abandoned on public or private property for more than thirty 30 consecutive minutes without moving from the exact spot it was located and reasonable attempts were made to locate the owner or responsible person(s) within the first fifty 50 feet of the Items. (3) Items displayed, offered, or made available for sale by a Sidewalk Vendor who does not possess a valid applicable Sidewalk Vending Permit and a City Business License.
(4) Items displayed, offered, or made available for sale by a Sidewalk Vendor who operates in violation of this Article; and refuses or fails to provide identification.
(5) Operation in violation of this Article and refusal or failure by a Sidewalk Vendor to remove items from public or private property within 30 consecutive minutes after being instructed to do so by a City official. (6) Items displayed, offered, or made available for sale by a Sidewalk Vendor who vends in a manner that blocks or obstructs the free movement of pedestrians on sidewalks and fails to maintain a minimum of forty -eight inches (48") of accessible path of travel, without obstruction, along the sidewalk upon which the vendor is vending so as to enable persons to freely pass while walking, running, or using mobility assistance devices, and/or in violation of the Federal Americans with Disabilities Act of 1990 (Publi c Law 101 -336) and other disability access standards.
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(7) Items displayed, offered, or made available for sale in violation of any applicable federal, State, County, or City laws, ordinances, and regulations, including, but not limited to , illegal or counterfeit merchandise, alcohol, tobacco, cannabis, smoke or vaping products, adult -oriented material, live animals, weapons, and/or pharmaceuticals.
(8) Items creating an imminent and substantial danger or environmental hazard to the health, safety, or general welfare of the public or property at the location of the vending cart such as, but not limited to, discharge of oil, grease, or other slippery substances on the street or sidewalk without any effort to maintain best management practices; using unapproved portable cooking equipment, heating element, gas-fueled appliance, generator, or any open flame; during an urgent or emergency public safety event or incident; lack of a fire extinguisher; using any luminaire, flashing lights, or any other animated devices or sign; or using, operating, or permitting any radio, loudspeaker, or other machine or device for the producing or reproducing of sound.
(9) Items displayed, offered, or made available for sale by a Sidewalk Vendor who has, within a 24 month period, been issued three or more administrative citations for violations of this Article.
(10) Items impounded as evidence of a crime or booked as property after an arrest of any Sidewalk Vendor involving any City, County, State, or federal law or regulation excluding this Article. Such Items shall be stored and released in accordance with the procedures set forth in the California Penal Code and any other applicable State law.
(c) Forfeiture Impoundment Authorization For Repeat Offenders. The City may immediately conduct a forfeiture impoundment of Items from a Sidewalk Vendor who has been found responsible for engaging in sidewalk vending activities in violation of this Article two or more times within a 24 month period (herein identified as a repeat offender) after being contacted by a City official who issued a notice of violation. An aggrieved repeat offender may appeal a City forfeiture impoundment action pursuant to the procedures set forth in this Section.
(d) Disposal Authorization. The City may immediately dispose of impounded Items that are perishable and/or cannot be safely stored.
(e) Impoundment Period Of Items Held By City. The impoundment of any Sidewalk Vendor's Items, excluding any Items that were immediately disposed of because they were perishable and/or could not be safely stored, may be held by the City for not less than 30, nor more than 60, calendars days from the date of impoundment. (f) Impoundment Notification. Upon impoundment of Items under this Section, the Director or designee shall do all the following:
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(1) Take responsibility for the storage, documentation, and disposition of the Items excluding any Items that were immediately disposed of because they were perishable and/or could not be safely stored.
(2) Provide the person from whom the Items were taken with a receipt and instructions for the retrieval of the Items excluding any Items that were immediately disposed of because they were perishable and/or could not be safely stored. The receipt and instructions shall either be given to the person from whom the Items were taken at the time the City official obtained the Items or mailed on the next business day, by first class mail, to the person from whom the Items were taken.
(3) If the City official has knowledge that the person from whom the Items were taken is not the owner, the Director or designee shall make reasonable efforts to identify the owner. If the owner is identified, the Director or designee shall mail, by first class mail, a receipt and instructions for the retrieval of the Items excluding any Items that were immediately disposed of because they were perishable and/or could not be safely stored.
A. The receipt and instructions shall notify the person from whom the Items were taken that the Items must be claimed either within (A) 30 calendar days of impoundment pursuant to Section 114393 of the California Health and Safety Code and/or (B) 60 calendar days of impoundment pursuant to Section 2080.10 of the California Civil Code, and that if the Items are not claimed within the applicable time, the Items will be disposed of in accordance with the disposal provisions of this Section or any other applicable County or State law. Within the applicable 30 or 60 calendar days, the person may do one of the following.
1. Retrieve the Items, excluding any Items that were
immediately disposed of because they were perishable
and/or could not be safely stored.
2. Authorize in writing another person to retrieve the Items, excluding any Items that were immediately disposed of
because they were perishable and/or could not be safely stored.
3. Notify the City in writing that they are unable to retrieve the Items because they are in custody (e.g., jail or prison) and request the City to hold the Items, excluding any Items that were immediately disposed of because they were perishable and/or could not be safely stored. If a person notifies the City that they are unable to either retrieve the Items within the applicable 30 or 60 calendar days, or have an authorized person retrieve the Items, the City shall hold the Items for not longer than 10 addi tional months, after which time the City may Ordinance No. ___
dispose of the Items in accordance with the disposal provisions of this Code or any other applicable County or State law.
B. Pursuant to State law, the City shall not be liable for damages caused by any official action performed with due care regarding the disposition of items pursuant to this Section and the disposal provisions of this Article.
(g) Appeal Of Impoundment. An aggrieved Sidewalk Vendor may, within 15 calendar days of the impoundment, appeal the impoundment of their Items by requesting an administrative hearing before the City Manager or the City Manager’s designee pursuant to the procedures described in Section 15-826 of this Article and, if successful in their appeal, may have their Items returned, excluding any Items that were immediately disposed of because they were perishable and/or could not be safely stored and shall not be required to pay the impound fee(s). If the Sidewalk Vendor is successful on appeal, any appeal fee paid by the Sidewalk Vendor shall be refunded. (h) Recovery Of Impounded Items And Payment Of Impound Fees. A Sidewalk Vendor may recover impounded Items, excluding any Items that were immediately disposed of because they were perishable and/or could not be safely stored, upon paying applicable impound fees and demonstrating proper proof of ownership of the Items.
(i) The City Council may by resolution adopt impound fees, which shall reflect the City's personnel, enforcement, investigation, storage, disposal, and Impound costs. (j) Unclaimed Items. Any unclaimed Items will be considered abandoned and forfeited to the City after (A) 30 calendar days of impoundment pursuant to Section 114393 of the California Health and Safety Code and/or (B) 60 calendar days of impoundment pursuant to Section 2080.10 of the California Civil Code, or any other applicable City, County, or State law.
(k) The Director is further authorized to develop additional regulations for the storage and release of impounded Items not in conflict with this Article.
SECTION 4. Compliance with California Environmental Quality Act. The Fontana City Council (“City Council”) finds that this Ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to California Code of Regulations, title 14, chapter 3 (“CEQA Guidelines”), sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it ha s no potential for resulting in physical change to the environment, directly or indirectly. Further, if the activity is deemed a project, the City Council finds that this Ordinance is exempt pursuant to CEQA Guidelines section 15061(b)(3).
SECTION 5. Severability. If any section or provision of this Ordinance is for any reason held to be invalid , unconstitutional, illegal , or unenforceable by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, then such section or provision Ordinance No. ___
shall be severed and shall be inoperative, and the remainder of this Ordinance shall remain in full force and effect.
SECTION 6. The Mayor shall sign and the City Clerk shall certify passage and adoption of this Ordinance, and the City Clerk shall cause the same to be published and posted pursuant to the provisions of law in this regard, and this Ordinance shall take effect 30 days after its final passage.
PASSED, APPROVED, and ADOPTED this ______ day of _______, 2023.
Acquanetta Warren, Mayor
____________________________________
Germaine Key, City Clerk
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I, Germaine Key, City Clerk of the City of Fontana, California, do hereby certify that the foregoing Ordinance No. ___ was duly introduced for first reading on ________ and regularly adopted at a regular meeting of the City Council of the City of Fontana on _________ by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS THEREOF, I hereunto set my hand and affix the official seal of the City of Fontana on this ______ day of _______, 2023.
________________________________
Germaine Key, City Clerk
SEAL