Agenda Item
City Council
Item #: 8.1. 7/11/2023 File #: 23-0456
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director
1. SUBJECT
Introduction and First Reading of an ordinance and adoption of an urgency ordinance amending Chapter 2.80 regarding obstruction and interference with enforcement of the Orange Municipal Code and Chapter 5.54 regarding impoundment of items related to sidewalk vending; and adoption of a resolution setting impound fees related to sidewalk vendors.
2. SUMMARY
Ordinance No. 09-23 and Urgency Ordinance No. 10-23 will: (1) establish criminal sanctions for any person who obstructs, impedes, threatens, follows, intimidates, or interferes with any code compliance officer, police, fire, or City personnel engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the Orange Municipal Code; and (2) update the sidewalk vendor regulations to address impounding of sidewalk vending carts, food, equipment, utensils, goods or merchandise and appeal rights related to impoundment. Resolution No. 11482 will set impound and appeal fees for impounded items.
3. RECOMMENDED ACTION
1. Introduce and conduct First Reading of 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.
2. Adopt Ordinance No. 10-23 and the findings of urgency. An Urgency Ordinance of the City Council of the City of Orange amending Chapter 2.80 regarding obstruction and interference with enforcement of the Orange Municipal Code and Chapter 5.54 regarding impoundment of items related to sidewalk vending.
3. Adopt Resolution No. 11482. A Resolution of the City Council of the City of Orange setting the amount of appeal and impoundment fees relating to sidewalk vendors.
4. FISCAL IMPACT
None.
5. STRATEGIC PLAN GOALS
City of Orange Printed on 7/6/2023Page 1 of 6
powered by Legistar™
Item #: 8.1. 7/11/2023 File #: 23-0456
Goal 1: Provide for a Safe Community
a. Providing staffing and resources to deliver services that ensure public safety.
6. DISCUSSION AND BACKGROUND
The City’s Sidewalk Vending Permit program was approved on April 11, 2023, by adoption of Ordinance No. 03-23, which added Chapter 5.54 to the OMC and implemented regulations to provide a licensing and permitting process for sidewalk vending and impose operational requirements for sidewalk vendors within the City in compliance with Senate Bill 946 (“SB946”),to protect the health, safety, and welfare of the community.
The Community Development Department’s Code Compliance Division has been tasked with administering, promoting, and enforcing the program contained in Chapter 5.54 of the OMC by:
1. Requiring any person who engages in sidewalk vending activity to apply for a Sidewalk Vending Permit and obtain a City Business License;
2. Developing sidewalk vending informational materials and City website content in both English and Spanish to help facilitate the process for persons applying for a sidewalk vending permit;
3. Setting limits on hours of operation and imposing noise restrictions on sidewalk vending that are not unduly restrictive;
4. Requiring sidewalk vendors to maintain sanitary conditions (e.g., proper sanitation, food preparation, and food handling to prevent food contamination, poor hygienic practices, and threat of food poisoning);
5. Imposing 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;
6. Preventing the discharge of grease and oil on streets and sidewalks by imposing best management practices for containing and cleaning up spills;
7. Maintaining requirements for safe paths of travel for pedestrians and to ensure compliance with the Americans with Disabilities Act and other disability access standards;
8. Ensuring sidewalk vendors possess a Seller’s Permit 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 such as a health permit for sidewalk vendors who sell food to the public;
9. Requiring that a sidewalk vendor submit specified information regarding their vending operation;
10. Ensuring there is no interference with the performance of police, fire, and emergency medical personnel services; and
11. Placing additional time, place, and manner restrictions, provided said restrictions are directly related to objective health, safety, or welfare concerns such as distancing from other vendors.
Since the passage of the City’s Sidewalk Vending Permit program, no person has applied for a sidewalk vending permit. Code compliance staff have received over a hundred complaints from the public by telephone, in person or through the 24/7 app regarding unlicensed and unpermitted sidewalk vendors (herein described as “illegalsidewalk vendors”)operating on the public right-of-way City of Orange Printed on 7/6/2023Page 2 of 6
powered by Legistar™
Item #: 8.1. 7/11/2023 File #: 23-0456
sidewalk vendors (herein described as “illegalsidewalk vendors”)operating on the public right-of-way in violation of the OMC. Staff have contacted over sixty illegal sidewalk vendors, including over thirty repeat offenders regarding violations of the City’sSidewalk Vending Permit program. Those violations relate to objective to health, safety, or welfare concerns including, but not limited to:
• Unlicensed and unpermitted vending activity
• Serving food without a health permit
• Dumping grease and oil on a sidewalk and street
• Playing loud music
• Operating late hours (between 10:00 p.m. and 1:30 a.m. of the next day) • Setting up a large customer seating area over the sidewalk • Most significantly, blocking of safe paths of travel on sidewalks for pedestrians and persons with disabilities
Illegal sidewalk vendors have refused or failed to comply with notices issued to them by code compliance officers which are printed in both English and Spanish. Moreover, they refuse to provide identification to facilitate the issuance of administrative citations or other City notices. Since sidewalk vending has been decriminalized by State law contained in SB 946, these individuals cannot be arrested for failing to provide legal identification upon request of code compliance officers or police officers for the issuance of citations or notices. Therefore, despite numerous contacts with illegal sidewalk vendors, there has been no compliance with sidewalk vending regulations contained in the OMC.
Moreover, concerns regarding the safe handling of food have required the City to enter into a contract with the Orange County Health Care Agency (“OCHCA”)to impound unsafe food, equipment and utensils, under their County authority. To date, the impoundment of unsafe food, equipment and utensils has been done with approximately fourteen (14) illegal sidewalk vendors. However, the same illegal sidewalk vendors continue to reopen and engage in unlicensed and unpermitted sidewalk vending activities throughout the City. Unfortunately, at this point, the impoundment of unsafe food, equipment and utensils is limited to the availability of the OCHCA who serves other contract cities throughout the County.
In addition, code compliance officers have observed individuals herein described as “spotters”who appear to be part of an illegal sidewalk vendors’network. These spotters sit in cars near the City Hall parking lot for numerous hours throughout the day watching the movement of code compliance vehicles operating after typical work hours. When staff leave City vehicles in the City Hall parking lot, it is our understanding that a majority of the illegal sidewalk vendors begin illegal vending activities and, conversely, when spotters see staff driving City vehicles out of the City parking lot, invariably fewer vendors are found to be operating that evening. In order to encourage more effective enforcement, staff have been required to park City vehicles at other City facilities unknown and/or unmonitored by spotters.
There have also been other, more significant, difficulties with enforcement activities, related to the safety of code compliance officers. To illustrate, on one recent occasion, a person began aggressively following a code compliance officer’s [City or personal] vehicle throughout various streets causing staff to become apprehensive of danger, as the person’sultimate intentions were unknown at the time. This person was later identified as an owner or operator of an illegal sidewalk City of Orange Printed on 7/6/2023Page 3 of 6
powered by Legistar™
Item #: 8.1. 7/11/2023 File #: 23-0456
unknown at the time. This person was later identified as an owner or operator of an illegal sidewalk vending location that was shut down and/or cited by the OCHCA, police, and code compliance.
Based on all of the above, City staff has identified several areas within the OMC that would benefit from revision to address the recent activities of illegal sidewalk vendors and those apparently associated with them. For example, the proposed Ordinance amends Chapter 2.80 (Enforcement of the Orange Municipal Code) establishing criminal sanctions for any person who obstructs or interferes with any code compliance officer, police, fire, or City personnel engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the OMC and amends Chapter 5.54 (Regulation of Sidewalk Vendors) to update regulations related to appeals and impoundments for sidewalk vendors.
Proposed additions and revisions are further summarized below:
New Section 2.80.030 (Obstruction or Interference with Code Compliance, Police, Fire or Authorized Officers or Employees)
The proposed addition to Chapter 2.80 (Enforcement of the Orange Municipal Code) makes it 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 of this City engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the OMC. Those persons violating this new Section 2.80.030 would be guilty of a misdemeanor pursuant to Section 1.08.010 and, upon conviction, may be punished by 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. This new provision is intended to address general concern for the safety of City officials and the effective enforcement of the OMC highlighted by recent illegal and unpermitted sidewalk vendors.
Amended Section 5.54.150.C and D (Appeal of denial or revocation of Sidewalk Vending Permit and/or Impoundment)
To accompany the addition of a new Section 5.54.160 (discussed below), revised subsections C and D of Section 5.54.160 would explicitly include within the appeal process contained in Section
5.54.150, any sidewalk vendors who have had their sidewalk vending cart, food, equipment, utensils, goods, or merchandise impounded by the City.
New Section 5.54.160 (Impoundment) and accompanying Amendment to Definitions The proposed addition of Section 5.54.160 would provide the legal authority for any City official including a City code compliance officer, police officer, firefighter, fire prevention specialist or examiner, or Orange County health inspector working on behalf of the City to impound a sidewalk vendor’svending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”)used in violation of Chapter 5.54 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:
Food displayed, offered, or made available for sale by a sidewalk vendor who does not hold a valid and displayed health permit;
A vending cart reasonably appearing to be unattended or abandoned on public or private property for more than thirty (30) consecutive minutes without moving and a responsible person City of Orange Printed on 7/6/2023Page 4 of 6
powered by Legistar™
Item #: 8.1. 7/11/2023 File #: 23-0456
within 50 feet;
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; Items from a sidewalk vendor who fails or refuses to provide identification; A sidewalk vendor who refuses or fails to remove their items from public or private property within thirty (30) consecutive minutes after being instructed to do so by a City official; Items prohibited or restricted by Federal, State, County, or City laws, ordinances, or regulations;
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; Items from a sidewalk vendor who within a twenty-four (24) month period, has been issued three (3) or more administrative citations;
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; Forfeiture impoundment of items from a repeat offender who has engaged in sidewalk vending activities in violation of the OMC two (2) or more times within a twenty-four (24) month period; Further, new Section 5.54.160 provides processes pertaining to impoundment. It provides that any sidewalk vendor whose items are impounded will be provided with a receipt and instructions on how to retrieve their items. It also provides a sidewalk vendor with the ability to appeal the impoundment action within twenty-one calendar days of the impoundment upon payment of an appeal fee.
Additionally, it provides for the recovery of impounded items upon payment of an impound fee. Lastly, it provides that any unclaimed items will be considered abandoned and forfeited to the City. New Section 5.54.160 also provides the Community Development Director with authority to develop additional regulations for the storage and release of impounded items, as other issues may arise that may necessitate expeditious policymaking.
It should be noted that the impoundment of items that are perishable and/or could not be safely stored shall be immediately disposed of in accordance with County and State law. The proposed Ordinance also adds “impound”to the Definitions contained in Section 5.54.020 in order to ensure the complete integration of these proposed changes into Chapter 5.54.
It is important to note that SB 946 does not restrict or limit the City’s legal authority to execute impoundment actions of vending carts, unsafe food, equipment, utensils, goods, or merchandise, against sidewalk vendors, as other cities have done, as such regulation is based on objective health, safety, or welfare concerns.
In summary, this proposed Ordinance will provide additional tools to code compliance personnel and other City officials in addressing both illegal and legal sidewalk vendors who fail to comply with the City’ssidewalk vending permit program and, importantly, provides for criminal sanctions against any person who interferes or obstructs City personnel in the performance of their duties or enforcement authority.
Because of the demonstrated objective health, safety and welfare concerns, Urgency Ordinance No. 10-23 will become effective immediately and will be superseded by Ordinance No. 09-23 when it goes into effect 30 days after the second reading (adoption). A four-fifths vote of the City Council is City of Orange Printed on 7/6/2023Page 5 of 6
powered by Legistar™
Item #: 8.1. 7/11/2023 File #: 23-0456
goes into effect 30 days after the second reading (adoption). A four-fifths vote of the City Council is required for passage of the Urgency Ordinance.
7. ATTACHMENTS
· Ordinance No. 09-23 - REDLINED
· Ordinance No. 09-23 - CLEAN
· Urgency Ordinance No. 10-23
· Resolution No. 11482
City of Orange Printed on 7/6/2023Page 6 of 6
powered by Legistar™