DATE: April 15, 2024
TO: Mayor and Members of the City Council
VIA: Stefan Chatwin, City Manager
Marlene Subhashini, Assistant City Manager
FROM: Derek Schweigart, Parks and Recreation Director
Benjamin L. Stock, City Attorney
DEPARTMENT: Parks and Recreation Department
SUBJECT: CONSIDER AMENDMENTS TO VARIOUS SECTIONS OF FCMC CHAPTERS 12.08, 12.12, 12.16 AND 12.36 WITHIN TITLE 12, “PUBLIC PROPERTY” MAKING REVISIONS TO AUTHORIZE
ADMINISTRATIVE CITATIONS TO BE ISSUED FOR
VIOLATIONS AND OTHER ADMINISTRATIVE CHANGES TO
RESERVATION PROCESS AND USE OF PARKS AND ADDING A
NEW CHAPTER 12.44, “SIDEWALK VENDING PROGRAM” TO
ESTABLISH LOCATIONS AND REGULATIONS APPLICABLE TO
SIDEWALK VENDORS
RECOMMENDATION
It is recommended that the City Council introduce by title only, and by motion waive further reading of Ordinance Amending Various Sections of FCMC Chapters 12.08,
12.12, 12.16 and 12.36 within Title 12, “Public Property” Making Revisions to Authorize Administrative Citations to be Issued for Violations and Other Administrative Changes to Reservation Process and Use of Parks and Adding a New Chapter 12.44, “Sidewalk Vending Program” to Establish Locations and Regulations Applicable to Sidewalk Vendors.
EXECUTIVE SUMMARY
Foster City has over 160 acres of parks and open space land including bike paths, dog exercise areas, a lighted softball field, numerous soccer and youth baseball fields, tennis courts, basketball courts, picnic facilities, bocce ball courts, walkways and pedways.
In order to manage these public areas, the Foster City Municipal Code (“FCMC”) provides regulations for the use of public property, including public parks, within Title 12 of the Municipal Code. More specifically, FCMC Chapters 12.08, 12.12, 12.16 and 12.36 within Title 12 specify the requirements for park use that include, among other things, the process for reservations, the mechanisms for enforcement and penalties as well as the general rules and regulations associated with use of the park.
City staff desires to amend certain provisions of FCMC Chapters 12.08, 12.12, 12.16 and 12.36 to allow more flexibility to the Parks and Recreation Director or their designee in the process of reservations of the City’s parks and to provide another option for enforcement through the issuance of an administrative citation when a person or group refuses to move from an area that has been reserved in a park and other conforming amendments.
BACKGROUND/ANALYSIS
Due to the popularity of the City’s parks, the City has a high number of reservations during the summer months. The reservation process provides that a person or group can reserve an area for the exclusive use of persons and groups subject to the issuance of a permit by the Director of Parks and Recreation as provided in FCMC Sections
12.16.080 through 12.16.180. Section 12.16.090 provides a specific schedule of fees and charges for use of the parks and identifies various classifications (A-G) based on the type of use. For example, Classification A is for meetings of the city council or subdivisions or committees thereof and public recreations activities that are conducted by the department of recreation while Classification B is for meetings or programs that are conducted by city youth organizations.
Currently, the reservation system for parks is based on the applicable Classification, with certain Classifications having priority over others. FCMC Section 12.16.180 currently provides that reservations for community parks use pursuant to Classifications C, D, E and F may be superseded at any time by uses pursuant to Classifications A and B.
Likewise, reservations for community parks use pursuant to Classifications D, E and F may be superseded by uses pursuant to Classification C provided that the C-use permit is issued thirty (30) days prior to the reserved use. There is currently no flexibility in this process to allow the Director of Parks and Recreation to make any alternative determinations regarding reservations, which can result in certain Classifications monopolizing the use of parks.
Another frequent issue that arises with the use of the parks and the reservation process is that enforcement of the reservations themselves can be challenging. Sometimes an area has been reserved by a person or group and another person or group using that area refuses to leave. When these incidents occur, it is difficult for the Foster City Police to figure out who has reserved the area and to determine whether a criminal citation is warranted. Under such circumstances, when the City does not honor a reservation for park use, public confidence in the reservation system can erode and discourage people or groups from reserving the park space and paying the fee, if applicable, in the future.
In order to address these issues, staff has prepared the proposed Ordinance to make amendments to various sections within Chapters 12.08, 12.12, 12.16 and 12.36 of the FCMC within Title 12 (Attachment 1). Some of the key amendments in the proposed Ordinance are summarized below.
FCMC Chapter 12.08 - Revisions to Definitions
FCMC Section 12.08.040 defines the “Director of Parks and Recreation”. The proposed Ordinance would revise the definition to add “or their designee” so that the Director can designate and/or delegate certain duties to other City staff. The definition of “Motorized Food Truck” is also added to Chapter 12.08 because it is referred to in the amendments to FCMC Chapter 12.36.
FCMC Chapter 12.12 - Administration and Enforcement
FCMC Section 12.12.050 currently designates the Director and the Chief of Police to enforce the provisions of Chapters 12.04 through 12.36. The proposed Ordinance would revise this section to add any designated code enforcement officer or safety officer and authorize the issuance of an administrative citation pursuant to FCMC Section 1.08.060 for any violations of Chapters 12.04 and 12.36. The proposed Ordinance would also revise FCMC Section 12.12.060 to authorize administrative citations.
FCMC Chapter 12.16 - Park Use
FCMC Section 12.16.170 currently provides that a determination for use permit may be rejected without cause by the Director and appealed to the City Council but does not reference the more specific appeal provision in FCMC Section 12.12.010. In order to eliminate any confusion regarding the applicable appeal process, the proposed Ordinance would revise this section to specifically cross-reference FCMC Section
12.12.010.
FCMC Section 12.16.180 would add language to allow the Director to exercise their discretion to utilize a different priority for the Classifications identified in Section
12.16.090 when the Director determines a different priority is necessary to ensure that the park use is available to all Classifications in an equitable manner and to avoid monopolization or overuse by any one particular Classification.
FCMC Chapter 12.36 - General Park and Building Rules and Regulations FCMC Sections 12.36.010 and 12.36.020 would be revised to reflect sidewalk vending authorized by SB 946 (The Sidewalk Vending Act), which requires cities to allow certain sidewalk vendors to sell food or merchandise in public parks. Cities may adopt additional requirements regulating the time, place, and manner of sidewalk vending, if the requirements are directly related to objective health, safety, or welfare concerns. (Govt C §51038(c)). A new Chapter 12.44 is proposed to be added to establish a Sidewalk Vending Program (“Program”) that is consistent with SB 946, and which establishes time, place and manner regulations. FCMC Section 12.36.020 is also amended to allow motorized food trucks to operate in specified park locations as authorized by the Director.
FCMC Section 12.36.030 would be revised to delete certain restrictions relating to distribution of written materials in the park to be consistent with free speech constraints under the First Amendment. Section 12.36.030 would continue to prohibit posting or affixing handbills or other circulars pamphlets, posts on trees, fences, or structures without the expressed written consent of the Director.
The proposed Ordinance would add a new FCMC Section 12.36.190 “Enforcement” that would specify that enforcement is to be conducted in accordance with FCMC Chapter 12.12. The proposed Ordinance would also add a new FCMC Section
12.36.200 “Other Rules” that authorizes the Director to adopt other rules, as necessary, for the safe and efficient use of the City’s parks and buildings. These rules would need to be made available to the public via the City’s website or posted in a public place.
FCMC Chapter 12.44 – Sidewalk Vending Program
As indicated above, SB 946 authorizes cities to adopt requirements regulating the time, place, and manner of sidewalk vending, if the requirements are directly related to objective health, safety, or welfare concerns. The proposed Program would require sidewalk vendors (both stationary and roaming vendors) to obtain a Vending Permit (“Permit”) to ensure that sidewalk vendors operating within the City are complying with certain objective regulations that are directly related to public health, safety and welfare. The Permit would be issued by the “Administrator”, which shall be the Community Development Director or their designee. An applicant desiring a Permit must provide the City with various documents and information and must also have a City business license. The Permit would be good for a period of one (1) year and could be renewed annually. The Program would establish operational requirements including compliance with County Health Department license requirements for carts, regulations specifying locations for vending, garbage requirements and other standards.
For example, the proposed Program would prohibit sidewalk vending within three hundred (300) feet of all borders of a city-sponsored or permitted temporary event, or a certified farmers’ market or a swap meeting to, among other things, prevent over- crowding of sidewalks at events. Vendors would also be prohibited from selling within twenty-five (25) feet of another vendor at any city park.
In compliance with SB 946, enforcement of the Program would not be through criminal citations but would instead be through administrative citations. A first incident would be subject to a written warning. A second incident would be subject to an administrative citation. SB 946 mandates the fines that the City can impose for violations.
For vending without a valid vending permit the following fines shall be applicable:
(i) An administrative fine of two hundred fifty and no/100ths ($250.00) dollars for a first violation.
(ii) An administrative fine of five hundred and no/100ths ($500.00) dollars for a second violation within one year of the first violation. (iii) An administrative fine of one thousand and no/100ths ($1,000.00) dollars for a third violation and each subsequent violation, within one year of the first violation.
Upon proof of a valid permit issued by the City before such fines are due, the city would reduce the amount of the fines to one hundred and no/100ths ($100.00) dollars for the first violation, two hundred and no/100ths ($200.00) dollars for the second violation, and five hundred and no/100ths ($500.00) dollars for each violation thereafter.
For all violations of this chapter other than vending without a valid vending permit as outlined above:
(i) An administrative fine of one hundred and no/100ths ($100.00) dollars for a first violation.
(ii) An administrative fine of two hundred and no/100ths ($200.00) dollars for a second violation within one year of the first violation. (iii) An administrative fine of five hundred and no/100ths ($500.00) dollars for a third violation within one year of the first violation. (iv) An administrative fine of five hundred and no/100ths ($500.00) dollars for a fourth and each subsequent violation, and revocation of the vending permit.
Revocation proceedings will be conducted in accordance with the rules and regulations established by the city.
The proposed Program would also allow the Administrator to develop rules and regulations regarding the licensing, permitting, and operation of sidewalk vending, in accordance with FCMC Chapter 12.44.
CEQA
The Ordinance is not subject to review under the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21000, et seq. and the CEQA Guidelines (14 Cal. Code Regs. §§ 15000 et. seq.), including without limitation, Public Resources Code Section 21065 and California Code of Regulations 15378 as this is not a “project” that may cause a direct, or reasonably foreseeable indirect, physical change in the environment as this Ordinance only makes administrative changes.
FISCAL IMPACT
There will be additional minimal costs to the City relating to enforcement of provisions under Chapters 12.08, 12.12, 12.16 and 12.36. There will also be costs to the City relating to the establishment and enforcement of the Sidewalk Vending Program.
CITY COUNCIL VISION, MISSION, AND VALUE/PRIORITY AREA
Facilities and Infrastructure
ATTACHMENTS
Attachment 1 – Proposed Ordinance
Attachment 2 – Redline of Amendments to Chapters, 12.08, 12.12, 12.16 and 12.36