July 2, 2024
Community Development
& Public Works
DATE: July 2, 2024
TO: Mayor Martinez and Members of the City Council
FROM:
Lina Velasco, Director of Community Development
Daniel Chavarria, Director of Public Works
SUBJECT: Sidewalk Vendor Ordinance
FINANCIAL IMPACT: The costs associated with the administration of the sidewalk vending permit program have not yet been
determined. In the short-term enforcement of the
ordinance will be led by Public Works. As part of the
approved Fiscal Year 2024-25 budget, $100,000 has
been allocated to operate a Mobile Vendor Plaza
Program that will be led by Economic Development in
collaboration with Community Development and Public
Works.
PREVIOUS COUNCIL
ACTION:
STATEMENT OF THE
ISSUE:
Recent State enactments and decisions, including
Senate Bill 946, have decriminalized sidewalk vending
and provided guidance on public vending and safety
standards. Cities have express authority to adopt
regulations restricting the time, place, and manner of
sidewalk vending, requiring permits, and establishing
administrative fines for vendor noncompliance. Richmond has experienced a significant influx of sidewalk vending and related concerns such as vendors operating under
conditions posing health and safety hazards to the public, including not having proper health permits for food
vending and blocking of sidewalks, and an increase in
littering associated with lack of proper solid waste
receptacles for vendors. City staff are proposing an
ordinance regulating sidewalk vending to address these
AGENDA
REPORT
July 2, 2024
and other concerns in a manner consistent with State
law. In addition, Staff is also seeking Council’s
authorization for the City Manager or her designee to
execute any and all agreements necessary to enable and
implement a Mobile Vendor Plaza Program, which would
provide opportunities for sidewalk vendors and other
interested vendors to continue their businesses in a
regulated manner, in exchange for agreements to not
illegally vend in other locations within the City in direct conflict with the proposed ordinance.
RECOMMENDED ACTION: ADOPT an ordinance (second reading) adding new Chapter 7.42 Sidewalk Vending regulations in the
Richmond Municipal Code consistent with state law and
AUTHORIZE the city manager or her designee to
execute any agreements necessary to establish and
implement a Mobile Vendor Plaza Program aimed at
creating opportunities for sidewalk vendors and other
interested parties to continue their businesses in a
regulated and licensed manner. The Ordinance is not a
project under the California Environmental Quality Act
(CEQA), in that it maintains the existing physical
environment and prevents changes in the environment
(CEQA Guidelines Section 15378(a)). It is also exempt
under Guidelines Sections 15060(c)(2) and Section
15061(b)(3) - Community Development
Department/Public Works Department (Lina Velasco 510-
620-6841/Daniel Chavarria 510-620-5478).
SUMMARY:
In recent years, state law enactments and decisions have provided guidance on public vending, which requires updating the Richmond Municipal Code (“RMC”) to ensure consistency and compliance with state law. Additionally, Richmond has experienced an influx of public vending-related concerns, such as vendors operating under conditions posing health and safety hazards to the public, including not having proper health permits for food vending and blocking of sidewalks, and an increase in littering associated with a lack of proper trash receptacles for vendors. These vending concerns are addressed in the ordinance (See Attachment 1).
As such, this proposed ordinance will add a new chapter to the RMC, Chapter 7.42 Sidewalk Vending, establishing regulations for sidewalk vending, including regulations on stationary and roaming vendors, consistent with Government Code section 51036 et seq., and to achieve more efficient enforcement of related violations to promote public health, safety, and welfare.
July 2, 2024
The outcome of this ordinance will be to establish permit requirements, provide reasonable time, place, and manner regulations on sidewalk vending, provide greater efficiency for the City of Richmond’s (“City”) enforcement efforts related to vending, ensure enhanced transparency, clarity, and ease of reference for the public concerning regulations related to vending, and ensure continued compliance with State laws to avoid any conflict between State and local law.
Staff is also seeking the City Council’s authorization for the City Manager or her designee to execute any and all agreements necessary to enable and implement a Mobile Vendor Plaza Program. This program will provide opportunities for sidewalk vendors to continue their businesses in a regulated manner in exchange for agreements not to illegally vend in other locations within the City in direct conflict with the proposed ordinance.
BACKGROUND:
In recent years, State law enactments and decisions have provided guidance on public vending, which requires updating the Richmond Municipal Code (“RMC”) to ensure consistency and compliance with state law. Specifically, the passage of Senate Bill (SB) 946 decriminalized sidewalk vending statewide and guided local jurisdictions’ sidewalk vending regulations. The City currently does not have provisions regulating sidewalk vendors in a manner consistent with SB 946; the purpose of the proposed ordinance is to establish a regulatory framework for all sidewalk vendors operating within the public right-of-way to maintain public health, safety, and general welfare that comports with state law.
In Fall 2023, the 23rd Street Merchants and residents raised concerns regarding the increase of sidewalk vendors operating without proper health permits, locating their businesses within parking stalls and paths of travel, and creating risks to public safety.
Since these initial complaints and concerns were raised, City staff have been working with internal and external stakeholders to obtain input on the proposed Mobile Vendor Plaza Program and sidewalk vending ordinance and related provisions.
On several occasions, City staff have convened various stakeholders to discuss key concerns, allowable city regulations and constraints, and develop an ordinance consistent with state law. The Community Development team conducted outreach through virtual and in-person meetings and direct outreach to sidewalk vendors.
DISCUSSION:
Senate Bill(SB) 946 Overview.
The Safe Sidewalk Vending Act, or SB 946, applies to persons who sells food or merchandise from a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other nonmotorized conveyance, or from one’s person, upon a public sidewalk or other pedestrian path. Under SB 946, a city cannot entirely prohibit or criminalize
July 2, 2024
sidewalk vending. Further, the provisions of SB 946 require local jurisdictions to adopt ordinances consistent with SB 946 to regulate sidewalk vending lawfully. SB 946 is codified in Government Code section 51036 et seq.
Generally, SB 946 provides guidance to local jurisdictions on establishing sidewalk vending regulations relating to time, place, and manner restrictions that are directly related to objective health, safety, and welfare concerns of the city. Namely, SB 946 provides the following expressly permitted regulations:
Cities may prohibit stationary vendors in residential zones outright, but not roaming vendors. Roaming vendors may be subject to reasonable regulations directly related to objective health, safety, or welfare concerns; Cities may prohibit sidewalk vendors from locating near certified farmers’ markets, swap meets, or other specially permitted temporary events, but only for the duration of the event;
Cities may prohibit all sidewalk vending in a park (including beaches or open space areas) if a city has an exclusive concessionaire agreement for that site; Limitations on hours of operation that are not unduly restrictive. In nonresidential areas, any limitations on the hours of operation for sidewalk vending shall not be more restrictive than any limitations on hours of operation imposed on other businesses or uses on the same street;
Requirements to maintain sanitary conditions;
Requirements necessary to ensure compliance with the federal Americans with Disabilities Act;
Requiring the sidewalk vendor to obtain from the local authority a permit for sidewalk vending or a valid business license;
Requiring the sidewalk vendor to possess a valid California Department of Tax and Fee Administration seller’s permit;
Requiring additional licenses from other state or local agencies to the extent required by law (e.g. a Mobile Food Facility Permit issued by Contra Costa County);
Requiring compliance with other generally applicable laws (e.g. fire safety requirements); and,
Requiring a sidewalk vendor to submit information on his or her operations.
SB 946 also provides that cities can enact additional regulations provided they serve the objective health, safety, and welfare concerns of the city. The proposed ordinance incorporates the above listed regulations and provides for additional regulations that are directly tailored to the City’s objective health, safety, and welfare concerns.
Additionally, SB 946 imposes limits on local jurisdictions’ enforcement mechanisms.
Cities can no longer criminally prosecute sidewalk vending via criminal infractions or misdemeanors. Instead, violations of local vending regulations can only be via civil fines subject to the following maximum fine amounts:
First Violation Administrative Fine of $100
Second Violation Administrative Fine of $200
July 2, 2024
Each Additional Violation Within One Year of the First Administrative Fine of $500 Fourth and Subsequent Violations Revocation of Permit
When specific sidewalk vending permits are required, vending without a permit is punishable by the following increased fine amounts:
First Violation Administrative Fine of $250
Second Violation Within One Year of First Administrative Fine of $500 Each Additional Violation Within One Year of the First Administrative Fine of $1,000
SB 946 also requires local jurisdictions to establish an administrative process to determine one’s ability to pay the administrative fine and related fine hardship waivers.
Contra Costa County Mobile Food Facility (MFF) Permit.
If the sidewalk vendor is selling food, the vendor must also obtain a Mobile Food Facility Permit issued by the Contra Costa County Department of Environmental Health. If a complaint is received that a sidewalk food vendor is allegedly violating provisions of the California Health and Safety Code, a Contra Costa County Department of Environmental Health Inspector will investigate in pairs and if the violation is found, will prepare a Notice of Violation. For the first violation, the Notice of Violation will inform the vendor that they’re in violation of the state Health and Safety Code, cite the specific regulation that they’re violating, and provide outreach documents that contain instructions on how to become compliant. For a second violation, an Inspector from the Department of Environmental Health will contact the vendor again to highlight the violation as well as provide the necessary documentation to be compliant with health and safety codes. In some instances, the cart/pushcart will be impounded by the County.
Summary of Proposed Ordinance
The proposed ordinance will add a new chapter to the RMC, Chapter 7.42 Sidewalk Vending, establishing regulations for sidewalk vending, including regulations on stationary and roaming vendors, consistent with Government Code section 51036 et seq., and to achieve more efficient enforcement of related violations to promote public health, safety, and welfare.
The proposed addition of Chapter 7.42 regulates sidewalk vending in the City in compliance with and consistent with California Senate Bill 946—codified in Government Code section 51036 et seq.—to ensure clear guidance, include constitutionally reasonable time, place, and manner restrictions to promote health, safety, and welfare concerns, and provide for enforcement remedies. Of note:
RMC section 7.42.030 requires a City business permit and special City business permit for vending operations;
July 2, 2024
RMC section 7.42.040(b), (d) sets forth reasons for City suspension and revocation of permits, and streamlines appeal procedure for permit denial and revocation;
RMC section 7.42.050 allows for the use of a California driver’s license or identification card, taxpayer identification number or a municipal identification number in lieu of a Social Security Number for licensing; RMC section 7.42.060 establishes operational standards, including size limitations of carts, times of operation, areas of operation, and requiring vendors to provide adequate trash receptacles;
RMC section 7.42.070 prohibits vending from carts in certain locations due to health, safety, and welfare concerns;
RMC section 7.42.080 establishes special requirement for vending in parks; RMC section 7.42.090 requires that food preparation comply with all State and local licensing requirements; and,
RMC section 7.42.100 specifies the penalties for violations of the chapter including administrative fines. It allows for any person who receives a fine to request an ability-to-pay determination for a fine reduction and offers the City Manager the discretion to allow community service, waive, or offer an alternative approach.
PUBLIC INPUT AND OUTREACH:
City staff hosted workshops and working group meetings to develop the provisions of the proposed ordinance. In addition, the Public Works Engineering Department prepared a survey of various sidewalk locations throughout the City to tailor locational standards within the ordinance, including ADA compliance, to meet the City’s objectives.
On October 19, and October 23, 2023, staff hosted two Spanish and English Workshops to educate food vendors on the rules pertaining to SB 946 and mobile food permits in coordination with Contra Costa Environmental Health. Vendors were provided information regarding permit requirements and provided an opportunity to set up one- on-one meetings.
PROPOSED FOOD VENDOR PLAZA PROGRAM:
As an incentive to refrain from participating in vending activities in conflict with the proposed ordinance and to provide City-based vendors an opportunity to continue to vend in compliance with City and Health Code rules, it was suggested to establish a Mobile Vendor Plaza. This program would also provide an opportunity to organize and support vendors in obtaining the proper permits.
To inform the development of the program, student interns called and informed individuals who had previously attended other Sidewalk Vending Ordinance meetings, as well as conducted field outreach to participate in a Sidewalk Vendors focus group, on Friday May 24, 2024. During the focus group vendors were asked several questions
July 2, 2024
including what they sell, what times they sell, the equipment they use, and the location where they typically sell. All of the vendors that participated are from the City and would like to continue their vending within the City. Staff discussed the anticipated ordinance and its potential effect on the current operations of sidewalk vendors. Staff also presented that the proposed Mobile Vendor Plaza Program plans to help vendors get on track to obtain permits to operate safely and legally. City staff recommended three new locations: Marina Bay Farmer’s Market, Civic Center Farmer’s Market, and a location in Downtown Richmond for vendors to sell. Participation in the program would require vendors to agree that they understand the requirements of the proposed ordinance and that their other vending operations will not conflict with the proposed ordinance. The vendors voiced support for hosting the ‘Vendor Plaza,’ ‘Plaza de Vendedores’, on Wednesdays and Thursdays.
Additionally, vendors shared an interest in participating in the Civic Center Farmer’s Market held on Fridays and the Marina Bay Farmer’s Market held on Sundays. The ‘Vendor Plaza’ would be a location with bathrooms, light, a water sanitizing station, adequate space for vendors’ equipment, covered tents/canopies for food safety, and seating for patrons. The vendors, via an operator, would be given a special quarterly permit, similar to the ones held by Farmer’s Market vendors, that would allow them to prepare their food on-site for sale. Furthermore, staff will explore the potential for an additional vendor location to provide vendors an opportunity for supplementary options for vending, as well as encourage more public gatherings, support small businesses, and enjoy food, beverages, and products with their community.
Staff have discussed with the current operator of the Farmer’s Market regarding their ability to operate this program. They have prepared a scope and budget, and staff is seeking City Council authorization for the City Manager or her designee to complete the negotiation and execute the necessary agreements and/or contracts with an operator and other vendors necessary to establish the program within a budget not to exceed the amount budgeted ($100,000) in the FY 2024-25 budget.
FISCAL IMPACT:
The City Council allocated $100,000 in the FY 2024-25 budget to establish the Mobile Vendor Plaza program.
EQUITY GUIDELINES FOR THE MOBILE VENDOR PLAZA PROGRAM:
To help guarantee equity amongst the available spots in the Mobile Vendor Plaza Program, staff considered the following factors:
Prioritizing equity and allocations to the program for low-income vendors to promote economic sustainability.
Requiring all vendors who apply to the program to be residents of the City. Creating a lottery for the remaining spots to eschew any potential biases.
July 2, 2024
Requiring all vendors to attend an educational workshop that provides information on the City’s sidewalk vending regulations, safety standards, and an opportunity to connect with staff concerning the process for acquiring permits necessary for operation.
Providing optional, but highly encouraged, office hours to assist vendors with the procurement of applicable Environmental Health permits and City permits; and, Ensuring broad outreach to neighborhood councils and non-profit and community-based organizations.
ENVIRONMENTAL ANALYSIS:
This proposed ordinance is intended to maintain the status quo. The ordinance will not cause a direct physical change in the environment, nor a reasonably foreseeable indirect physical change in the environment. This action does not constitute the approval of a project under the California Environmental Quality Act (“CEQA”), and it is exempt from CEQA. (Pub. Res. Code § 21065, CEQA Guidelines §§ 15060(c), (2)(3); 15061(b)(3); 15064(d)(3); 15378(a).)
ALTERNATIVE ACTIONS:
The City Council could decide not to pass the ordinance. This could result in immediate and long-term adverse impacts, such as continued aggrieved sentiments on behalf of business owners across the City as well as subsisting concerns for public health and safety with regards to food preparation and compliance.
CONCLUSION:
The City has a substantial interest in promoting compliance with State laws regulating sidewalk vending, discouraging the unpermitted vending of food and drink, promoting compliance with laws prohibiting unsanitary and unsafe food preparation practices, and protecting the public from potentially adverse consequences concerning health and safety. In recent years, the feedback of commercial merchants and restaurateurs operating within primary vending areas of the City has created an apparent need to enforce regulations concerning legal and safe vending practices.
DOCUMENTS ATTACHED:
Attachment 1 – Sidewalk Vending Ordinance