Agenda Item
City Council
Item #: 9.1. 3/28/2023 File #: 23-0196
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Jeff Adams, Interim Community Development Director
1. SUBJECT
Introduction and First Reading of Ordinance No. 03-23, repealing Chapter 5.54 of the Orange Municipal Code related to hawking of goods and adopting new Chapter 5.54 relating to regulation of sidewalk vendors, and adoption of Resolution No. 11443 setting fines and fees.
2. SUMMARY
Ordinance No. 03-23 will officially establish the City’sSidewalk Vending Program as allowed by state law and includes provisions for a permitting process, operating requirements, violations, and penalties, recission of permits, and an appeals process. Resolution No. 11443 will set the fines and fees relating to the Sidewalk Vending Program.
3. RECOMMENDED ACTION
1. Introduce and conduct First Reading of Ordinance No. 03-23. An Ordinance of the City Council of the City of Orange repealing Chapter 5.54 of the Orange Municipal Code relating to hawking of goods and adopting new Chapter 5.54 relating to regulation of sidewalk vendors.
2. Adopt Resolution No. 11443. A Resolution of the City of Orange setting the amount of fines and fees relating to sidewalk vendors and sidewalk vending permits.
4. FISCAL IMPACT
There will be a fiscal impact however, it is undetermined at this time.
5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
a: Provide staffing and resources to deliver services that ensure public safety.
6. DISCUSSION AND BACKGROUND
Senate Bill 946 (SB 946), the Safe Sidewalk Vending Act, was signed into law effective January 1, 2019. SB 946 allows sidewalk vending to occur on public property and precludes cities from regulating such vendors except under the strict provisions of the bill. The City of Orange currently has no sidewalk vending program compliant with SB 946. In the interest of regulating this activity to the extent allowed by SB 946, while still facilitating entrepreneurship, providing economic opportunities for people, and contributing to a diversity of food options and dynamic public spaces, the City desires to initiate a Sidewalk Vending Program.
SB 946 establishes requirements for local regulation of sidewalk vending. Per SB 946, the City’s proposed Sidewalk Vending Program must comply with the following standards. Specifically, the City of Orange Printed on 3/22/2023Page 1 of 3
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Item #: 9.1. 3/28/2023 File #: 23-0196
proposed Sidewalk Vending Program must comply with the following standards. Specifically, the program adopted by the City cannot:
1. Require a sidewalk vendor to operate within specific parts of the public right-of-way, except when the restriction is directly related to objective health, safety, or welfare concerns;
2. Prohibit a sidewalk vendor from selling food or merchandise in a park owned or operated by the City, except the City may prohibit stationary sidewalk vendors from vending in a park if there is an existing agreement for concessions that exclusively permits the sale of food or merchandise by the concessionaire. The City may adopt additional requirements regarding the time, place, and manner of sidewalk vending in parks if the requirements are necessary to ensure the public’suse and enjoyment of natural resources and recreational opportunities or necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park;
3. Require a sidewalk vendor to obtain the consent or approval of any non-government entity or individual, such as a nearby business, before the vendor can sell food or merchandise;
4. Restrict sidewalk vendors to designated neighborhoods or areas, except when the restriction is directly related to objective health, safety, or welfare concerns; however, the City may prohibit stationary sidewalk vendors in areas zoned exclusively residential where no commercial activity is permitted, but the City cannot prohibit roaming sidewalk vendors in such areas; and
5. Restrict the overall number of sidewalk vendors permitted to operate in the City, unless the restriction is directly related to objective health, safety, or welfare concerns.
On the other hand, SB 946 allows the City to impose time, place, and manner restrictions on sidewalk vending provided said restrictions are directly related to objective health, safety, or welfare concerns, such as:
- Limitation on hours of operation that are not unduly restrictive; - Requirements to maintain sanitary conditions (i.e., proper sanitation, food preparation and food handling to prevent food contamination, poor hygienic practices, and threat of food poisoning);
- Regulations to ensure the collection and disposal of trash and other debris to avoid any remnant pollutants on sidewalks or in gutters at the conclusion of sidewalk vending activities; - Requirements necessary to maintain safe paths of travel for pedestrians and to ensure compliance with the Americans with Disabilities Act and other disability access standards; - Requirements to obtain a permit and a valid business license, possess a seller’spermit from the California Department of Tax and Fee Administration, or obtain additional licenses from other state and local agencies to the extent required by law; - Requirements that sidewalk vendor submit information on their operations; - Requirements to ensure no interference with the performance of police, fire, and emergency medical personnel services; and
- Additional time, place, and manner restrictions, provided said restrictions are directly related to objective health, safety, or welfare concerns, such as imposing a specific limit on the number City of Orange Printed on 3/22/2023Page 2 of 3
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Item #: 9.1. 3/28/2023 File #: 23-0196
objective health, safety, or welfare concerns, such as imposing a specific limit on the number of vendors per block or a required distance between vendors.
The City may also prohibit sidewalk vending within the immediate vicinity of a permitted farmer’s market or swap meet during their operating hours, such as the weekly Orange Home Grown event.
The City may also restrict or prohibit sidewalk vending within the immediate vicinity of an area designated for a temporary special permit issued by the City, such as permit for filming, a parade, an outdoor concert, or the Street Fair. Finally, the City may require a Sidewalk Vending Permit as part of its Sidewalk Vending Program.
Under SB 946, the City may not impose criminal penalties, such as misdemeanors or infractions, for violations of the Sidewalk Vending Program. Sidewalk vending violations are only punishable as administrative fines. A violation of the City’svending program by a person with a permit is punishable only by the following administrative fines: $100 for a first violation, $200 for a second violation, and $500 for each additional violation within one year of the first violation. A violation by any person engaged in sidewalk vending without a current and valid Sidewalk Vending Permit issued by the City is punishable only by the following administrative fines: $250 for a first violation, $500 for a second violation, and $1,000 for each additional violation within one year of the first violation.
If the City seeks to impose administrative fines, SB 946 allows the violator to appeal the fine and requires that the hearing officer take into account the cited vendor’sability to pay the fine. If a vendor meets the financial criteria, the City must accept 20% of the fine in full satisfaction and can allow the vendor to complete community service in lieu of paying a fine.
SB 946 also applies to all pending criminal prosecutions specifying that those that have not reached final judgment must be dismissed. Additionally, any person who is serving or completed a sentence or who is subject to a fine or misdemeanor or infraction conviction for sidewalk vending may petition for dismissal of the sentence, fine, or conviction. Unless a party opposing the petition for dismissal (e.g., a city) proves by clear and convincing evidence that the person seeking the petition is not eligible for dismissal, the court must grant the petition and dismiss and seal the conviction because the sentence, fine, and conviction are legally invalid. The City is in the process of dismissing any pending prosecutions for violations under the prior code sections.
7. ATTACHMENTS
· Ordinance No. 03-23
· Resolution No. 11433
· Sidewalk Vending Permit and Enforcement Process Flowchart · Sidewalk Vending Ordinance PowerPoint
City of Orange Printed on 3/22/2023Page 3 of 3
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