1 ORDINANCE NO. 09-23
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ORANGE AMENDING CHAPTER 2.80 OF
THE ORANGE MUNICIPAL CODE REGARDING
OBSTRUCTION AND INTERFERENCE WITH
ENFORCEMENT OF THE ORANGE MUNICIPAL
CODE AND CHAPTER 5.54 REGARDING
IMPOUNDMENT OF ITEMS RELATED TO
SIDEWALK VENDING
[Pertinent provisions only]
SECTION II:
New Section 2.80.030 (Administration and Personnel - Enforcement of the Orange Municipal Code - Obstruction or Interference with Code Enforcement, Police, Fire or Authorized Officers or Employees) is hereby added to read as follows:
2.80.030 Obstruction or Interference with Code Enforcement, Police, Fire or Authorized Officers or Employees.
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, police officer, firefighter, or other officers or employees o f this City engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the Orange Municipal Code. Such person shall be guilty of a misdemeanor pursuant to Section 1.08.010 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 $1,000.00 or by imprisonment in the County Jail for a period of not more than six months, or by both fine and imprisonment.
SECTION III:
Section 5.54.020 of the Orange Municipal Code (Business Taxes and Regulation s - Regulation of Sidewalk Vendors - Definitions) is hereby revised to add the following:
“Impound” means to seize or take custody of sidewalk vending cart, equipment, utensils, food or merchandise (collectively classified as “items”) because of a violation of any applicable law or regulation.
SECTION IV:
Sections 5.54.150.C and 5.54.150.D of the Orange Municipal Code (Business Taxes and Regulations - Regulation of Sidewalk Vendor s – Ability to Pay Determination and Appeals ) are hereby amended to read as follows:
2 C. Appeal of denial or revocation of Sidewalk Vending Permit and/or impoundment.
1. Any person who has been denied a Sidewalk Vending Permit or who has had a Sidewalk Vending Permit revoked by the Director or designee, or has had their sidewalk vending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”) impounded pursuant to this chapter may appeal such determination to the hearing officer, by filing a request for an appeal with the City Clerk, and paying an appeal fee as set by resolution of the City Council, within 21 calendar days of service of the notice of such denial , revocation and/or impoundment. The request for an appeal shall contain, at a minimum, the following:
a. The name, current mailing address, a nd telephone number of the appellant;
b. As applicable, t he date of denial or rescission by the Director or designee, or the date of impoundment of items by a City official;
c. A statement as to all grounds for appeal in sufficient detail to enable the hearing officer, to understand the nature of the controversy; and
d. The signature of the appellant under penalty of perjury as to the contents of the request for appeal.
2. An appeal shall be scheduled for a hearing before the hearing officer within thirty 30 calendar days of the filing of the appeal unless both the appellant and the hearing officer consent to a later date.
3. The hearing officer shall give notice in writ ing 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 for denial of a Sidewalk Vending Permit or revocation of a Sidewalk Vending Permit by the Director and/or reason for impoundment of items 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.
D. After the hearing, the hearing officer shall affirm, modify, or reverse the original denial or revocation and/or impoundment. When a denial or revocation and/or impoundment is modified or reversed, the hearing officer shall state the specific reasons for modification or reversal. Reversal of impoundment by the hearing officer shall result in the City returning the impounded items (excluding items that are perishable and/or co uld not be safely stored ) back to the appellant within 15 business days. 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.
3 SECTION V:
New Section 5.54.160 of the Orange Municipal Code (Business Taxes and Regulation s - Regulation of Sidewalk Vendors – Impoundment) is hereby added to read as follows:
5.54.160 Impoundment.
A. Impoundment authorization. Any City official , including a code compliance officer, police officer, firefighter, fire prevention specialist or examiner may impound a sidewalk vendor’s vending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”) used in violation o f this chapter 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 Orange County Health Care Agency ’s Environmental Health Division 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 as required by Section 5.54.030.A;
4. Items displayed, offered, or made available for sale by a sidewalk vendor who operates in violation of this chapter; and refuses or fails to provide identification, as required by Section 5.54.100.T;
5. Operation in violation of this chapter 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 (Public Law 101 -336) and other disability access standards;
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 4 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 t he street or sidewalk without any effort to maintain best management practices; us ing 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 3 or more administrative citations for violations of this chapter; or
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 Chapter 5.54. 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.
B. 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 chapter 2 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.
C. Disposal authorization. The City may immediately dispose of impounded items that are perishable and/or cannot be safely stored.
D. 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.
E. Impoundment notification. Upon impoundment of items under this section, the Director or designee shall do all the following:
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 instructi ons shall 5 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 days of impoundment pursuant to Section 114393 of the California Health and Safety Code and/or (B) 60 days of impoundment pursuant to Section 2080.10 of the California Civil Code after the City obtains possession of 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 days, the person may do one of the following:
i. Retrieve the items, excluding any items that were
immediately disposed of because they were perishable and/or could not be safely stored.
ii. 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.
iii. 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 days, or have an authorized person retrieve the items, the City shall hold the items for not longer than 10 additional months, after which time the City may 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 chapter.
F. Appeal of impoundment. An aggrieved sidewalk vendor may, within 21 calendar days of the impoundment, appeal the impoundment of their items by requesting an administrative hearing before a hearing officer in accordance with Section 5.54.150.C 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.
6 G. 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.
H. The City Council may by resolution adopt impound fees, which shall reflect the City’s personnel, enforcement, investigation, storage, disposal and impound costs.
I. Unclaimed items. Any unclaimed items will be considered abandoned and forfeited to the City after (A) 30 days of impoundment pursuant to Section 114393 of the California Health and Safety Code and/or (B) 60 days of impoundment pursuant to Section 2080.10 of the California Civil Code or any other applicable county or state law.
J. The Director is further authorized to develop additional regulations for the storage and release of impounded items not in conflict with this chapter.