City Attorney’s Office
Legal Memorandum
Date: January 11, 2019
To: Chief of Police
Director of Parks & Recreation
From: John Belisle, Deputy City Attorney
Subject: SB 946 Sidewalk Vendors
Question Presented
What effect does the legislature’s passage of SB 946 have on the enforcement of City Code sections regarding sidewalks and public rights of way, including in Chapters 8.10, 5.05, and 3.40?
Short Answer
SB 946 both (a) restricts the time, place and manner of regulations targeting individuals who sell food or merchandise on public sidewalks in and in parks, and (b) decriminalizes all violations, which has the following consequences:
1. Select sections of City Code must be revised, including sections restricting the time, place and manner of peddler/solicitor’s activities on public rights-of-way and in parks, and those sections authorizing criminal enforcement and amounts of fines (See chart below).
2. The Police Department can no longer cite sidewalk vendors under Chapter 5.05 for infractions and misdemeanors. The City’s enforcement is limited to administrative penalties.
3. The City must seek dismissal of all pending applicable criminal prosecutions, if any are pending.
Background
a. Description of the New Law
SB 946 decriminalizes and establishes requirements for local agencies to regulate sidewalk vendors.
The general legislative intent is to “to promote entrepreneurship and support immigrant and low-income communities,” and to respond to federal procedures for enforcing immigration laws against those convicted of a crime. A sidewalk vendor is defined as a person who “sells food or merchandise” upon a “public sidewalk or other pedestrian path,” by “non-motorized conveyance or from their person,” including while “roaming” and/or “stationary.” It was chaptered on September 17, 2018, and is codified as Government Code sections 51036 – 51039.
Under Section 51038, a city cannot:
1) Specify where within a public right of way a vendor can operate, unless it is related to health, safety or welfare (“HSW”) concerns. ((b)(1))
2) Prohibit a vendor from operating within a city park, unless the vendor is stationary and the city has granted an exclusive permit to a concessionaire. ((b)(2)(A).) But, the city can regulate time, place and manner of sales, if the regulations are related to HSW , the use and enjoyment of the park, and/or to prevent undue concentration of commercial activity. ((b)(2)(B).) 3) Require a vendor to obtain consent or approval from a nongovernmental entity (i.e., nearby restaurant) before the vendor operates. ((b)(3).)
SB 946 Sidewalk Vendors
January 11, 2019
4) Restrict vendors from operating in certain neighborhoods, except if restricting is related to HSW. ((b)(4)(A).) But, for neighborhoods zoned as exclusively residential, cities can prohibit stationary vendors from operating. ((b)(4)(B).)
5) Limit the number of vendors in the city, unless related to HSW. ((b)(5).)
Subject to the foregoing prohibitions, a city can:
1) Enact local laws related to objective HSW concerns that regulate time, place and manner, including requirements for sanitation, permitting, compliance with government (incl. health) inspections, licensing and taxation. (§ 51038(c).)
2) Restrict vendors from operating in immediate vicinity of: (§ 51038(d) a. Permitted certified farmers’ markets.
b. Permitted swap meets.
c. Public areas designated for “temporary special permits.” (including for parades, outdoor concerts).
In regulating sidewalk vendors, objective concerns of HSW cannot include “perceived community animus or economic competition.” (§ 51038(e).) Moreover, the law does not affect the applicability of the California Retail Food Code (Health & Saf. Code § 113700, et seq.), which addresses food safety and inspections, including for mobile food facilities and farmers markets. (§ 51037.)
SB 946 broadly decriminalizes sidewalk vending, prohibits cities from punishing violations of related local ordinances as criminal infractions or misdemeanors, and reduces enforcement power. (§ 51039.) A person cannot be arrested, penalties are restricted to administrative fines, and the statute specifies fine amounts and maximums. A person’s ability to pay must be considered “when assessing an administrative fine.” ((f)(1).) Furthermore, a person’s failure to pay an administrative fee cannot be punished by a criminal charge, nor can they be assessed any further “fines, fees, assessments, or any other financial conditions” beyond permit rescission. ((a)(2);(c).)
The new statute is retroactive for previous offenses. Individuals cited for previous violations of local ordinances affected by SB 946 “shall” have their pending charges dismissed, and prosecutions that have reached judgment may be petitioned for dismissal as well. (§ 51039(e)&(g).)
b. Santa Clara City Code
In different places, the City Code directly regulates the same type of activity targeted by SB 946:
- Chapter 5.05 (“Solicitors and Peddlers”) regulates door-to-door and place-to-place peddling and solicitation. The City Code makes a distinction between sales for immediate delivery (peddling) and for future delivery (solicitation), but SB 946 does not. Under City Code, Peddlers are individuals who “sells and makes immediate delivery or offers for sale… any goods, ware, merchandise or thing in the possession of the seller, at any place in the City other than at a fixed place of business.” (§ 5.05.010(j).) Peddling is defined to include “traveling” and “selling or vending… on any street, sidewalk, right-of-way, park or other public place,” including by mobile units (which includes a “trailer, push cart, wagon, bicycle, dray, conveyance or structure on wheels”). ((h),(k).) Because SB 946 does not distinguish between the time of delivery of the good for sale, it may apply to solicitors as defined by City Code: “any person who goes from place to place in the City, not having been invited by the occupant thereof, carrying or transporting goods, wares, merchandise or personal property of any nature and offers property of any nature for future delivery.” ((p).)
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o Under Article I, and subject to exceptions, peddlers and solicitors must obtain a permit from the Police Department for “peddling activities.” (§ 5.05.020.) Applicants are required to submit an application signed under penalty of perjury with biographical details, a description of their peddling, and a statement about their criminal history, in addition to submitting fingerprints and paying fees for a background investigation. (§ 5.05.040.)
• The Application requires a social security number from the applicant, and also reserves the right to deny applications if information is omitted. The terms of the permit require inter alia County health inspections and proof thereof for mobile units; operating hours between 10:00 a.m. and one-half hour after sunset, except if by “licensed catering vehicles” selling food at/near industrial establishments; wearing identification; and upon request, that the peddler providing his or her name, organizational information, and a copy of their signature. (§5.05.170.)
o Article II regulates solicitation from vehicles and mobile units. Solicitors are prohibited “while standing in any portion of the public right-of-way, including … sidewalks and driveways, to solicit, or attempt to solicit… business …from any person traveling in a vehicle along a public right -of-way.” (§
5.05.210(a).) It also prohibits solicitation to and from vehicles when the buyer or seller is in a public right-of-way. ((b), (c).)
Mobile unit peddlers (incl. pushcarts and wagons) are prohibited from:
• Standing or stopping “for peddling purposes, at any place on any public street, sidewalk, right-of-way, public park or other public place, for a total period of time exceeding ten minutes within any two-hour period” or “stopping” for a sale on any public right-of-way within 500 feet of a school property. (§ 5.05.230.)
• Stopping to peddle within 200 feet of another mobile unit. (§ 5.05.240.) • Peddling from an unapproved location, which is restricted as: (§
5.05.260(a).)
o Peddling is permitted only for the street-side of a sidewalk. ((3).) o Sidewalks must be a minimum width of 8 feet, with 3 feet for passage of pedestrian traffic. ((4).)
o The dimensions of the mobile unit cannot exceed 8-feet high by 5-feet wide by 6-feet long, and must be parked to minimize use of the sidewalk and not obstruct it. ((5), (7).)
o Peddlers cannot have more than their approved mobile unit, single stool and 33-gallon maximum trash container. ((6).) o Peddlers must carry general liability insurance. ((8).) o Permits will not be issued for specific locations, including: (§
5.05.270.)
Immediately adjacent to residentially zoned property. (a) Within 20-feet of a restricted parking/loading space. (b) Within 20-feet of the entrance to any building,
merchandise display, or crosswalk. ((c) – (e).)
Where it impedes traffic or is dangerous. ((f) – (h).) • Selling or peddling any articles, or to station any stand or cart for sale of any article or thing, in any park or adjacent public park, unless they are an approved concessionaire. (§ 5.05.280.)
SB 946 Sidewalk Vendors
January 11, 2019
- Chapter 8.10 (“Food and Food Establishments”) regulates the sale of food, food establishments and restaurants, and requires individuals selling food to be permitted, to follow State and local health laws and regulations, and to submit to inspections. (§§ 8.10.020 – 8.10.130.) Food establishments are places where food is “kept, held, sold, prepared or compounded or offered for sale for human consumption,” “not a public eating or drinking establishment,” including grocery stores, fruit and vegetable stands, and markets or “other premises” where meat is kept, stored, handled, or offered for sale. (§ 8.10.010(b).) Restaurants are places, including “sandwich stands” and cafes, where “food or drink is prepared on the premises for sale or distribution elsewhere. (Id., at (c).) The City’s Health Officer, or duly-authorized representative are “authorized and directed to seize and destroy or denature any tainted, diseased, decayed or partially decayed or unwholesome meat, fish, shell fish, fowl, fruits, vegetables or other unwholesome food found within the city.” (§ 8.10.110.)
- Chapter 3.40 (Business Tax) requires operators of businesses to pay taxes to the City. It requires that “parade vendors” ($15 per parade), “itinerant merchants” ($225 per 190 days), and peddlers ($ 113) each pay a business tax to the City.
The City Code also indirectly regulates sidewalks in parts that may be useful for further enforcing the health, welfare and safety thereon:
- Chapter 12.05 restricts a person from obstructing sidewalks from the free passage of pedestrians, including doing so by annoying or molesting persons passing by. (§ 12.05.010.) It does not provide any exception for those selling, or attempting to sell, food or merchandise.
- Title 9 (“Public Peace, Morals and Welfare”) prohibits individuals from bringing into “any portion of the parking areas” around the Stadium, and “perimeter sidewalk,” any food, goods or merchandise “for the purposes of sale or barter.” (§ 9.05.165 (m).)
Lastly, the City Code contains sections addressing enforcement, including the discretion to prosecute violation of code with civil, criminal or administrative penalties (§§ 1.05.070, 5.100.010), which are specifically preempted by SB 946.
c. Permit practices and procedures
The Permits Unit of the Police Department manages all permitting for peddler activity, including recei ving applications, granting or denying permits, and maintaining information with the HDL business license software. The Permits Unit does not maintain any internal written guidelines for its decision- making regarding granting and denying applications, and endeavors to only strictly follow and enforce the language of the City Code.
Analysis
SB 946 allows cities to require permits for sidewalk vending and to also restrict the time, place and manner (“TPM”) of sidewalk vending, if it is done for objective health, safety and welfare (“HSW”) reasons, or to address other specific concerns in parks and residential neighborhoods. Many of the restrictions in the Santa Clara City Code have an apparent relationship to HSW, such as to prevent obstruction of traffic. Thus, SB 946’s new requirements and restrictions facially preempt only select sections of the City Code dealing with the permitting of peddlers and solicitors where restrictions do not have an obvious and justifiable reason, such as HSW. The restrictions that do not have legally-justifiable reasons will be subject to legal challenge when the new law takes effect on January 1, 2019.
SB 946 Sidewalk Vendors
January 11, 2019
Furthermore, sections of City Code regarding enforcement of code and prosecution of code violates are entirely preempted by SB 946’s decriminalization of sidewalk vending.
City Code Enforceability
Under SB 946
Limitations Under SB 946 Action/Revisions
Required for Code
or Policies § Description
5.05.020 Peddlers & Solicitors
must be permitted
Enforceable City cannot restrict specific
locations unless for HSW
No action required
5.05.040 Required information for
permit
Enforceable in part Cannot require SSN None for Code;
Remove SSN field
from SCPD
Application
5.05.210 Solicitors cannot stand in
public right-of-way and
solicit to vehicles
traveling on streets
Enforceable City cannot restrict specific
locations unless for HSW
No action required
5.05.230
(a)(1)
Mobile Unit Peddler
(MUP) cannot stand or
stop for “peddling
purposes” in public right-
of-way … for longer than
total 10-mins within 2-hr
period
Likely Enforceable IF
for HSW
City cannot restrict specific
locations unless for HSW
Articulate reasoning
5.05.230
(a)(1)
MUP cannot stand or
stop for “peddling
purposes” in public right
of way … park for longer
than total 10-mins within
2-hr period
Likely Enforceable IF
for HSW
City cannot prohibit roaming
vendors within parks, but
may restrict if for HSW
reasons or use/enjoyment of
park or to prevent undue
concent. of comm. activity
Articulate reasoning
5.05.230
(a)(2)
MUP cannot stand or
stop for “peddling
purposes” with 500-ft of
school property
Likely Enforceable IF
for HSW
City cannot restrict specific
locations unless for HSW
Articulate reasoning
5.05.240 MUP cannot stop to
peddle with 200-ft of
other stopped MUP
Not Enforceable,
unless for HSW
City cannot restrict specific
locations unless for HSW
Articulate
reasoning; Revise
to remove or to
narrow restriction
City Code Enforceability
Under SB 946
Limitations Under SB 946 Action/Revisions
Required for Code
or Policies § Description
5.05.260 Permit locations and conditions
(a)(2) “issued only for a
specific approved
location which is stated
on the permit.”
Not Enforceable,
unless for HSW
City cannot restrict specific
locations unless for HSW,
or to restrict stationary
vendors from
neighborhoods exclusively
zoned as residential
Articulate
reasoning; Revise
to remove or to
narrow restriction
(a)(3) Only for street side of
sidewalk portion
Likely Enforceable
IF for HSW
City can restrict TPM of
permits for HSW
Articulate reasoning
(a)(4) Only for sidewalks of 8-
ft width with 3-ft of
passage for peds
Likely Enforceable
IF for HSW
City can restrict TPM of
permits for HSW
Articulate reasoning
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(a)(5) MUP/temp structure
dimensions are less
than 4’Hx5’Wx6’L
Likely Enforceable
IF for HSW
City can restrict TPM of
permits for HSW
Articulate reasoning
(a)(6) Limited to (i) 1
approved MUP/temp
structure, (ii) 1 stool,
and (iii) 1 garage can
Likely Enforceable
IF for HSW
City can restrict TPM of
permits for HSW
Articulate reasoning
5.05.270 Prohibited Locations
(a) Immediately adjacent to
residentially zoned
property
Not Enforceable,
unless for HSW
City “shall not restrict
sidewalk vendors to
operate only in a
designated neighborhood
or area, except” for HSW,
or to restrict “stationary”
vendors from
neighborhoods exclusively
zoned as residential
Articulate
reasoning; Revise
to remove or to
narrow restriction
(b) Within 20-ft of no-
parking zone,
handicapped parking
space or driveway
Likely Enforceable
IF for HSW
City can restrict TPM of
permits for HSW
Articulate reasoning
(c) Within 20-ft of entrance
to buildings
Not Enforceable,
unless for HSW
City “shall not restrict
sidewalk vendors to
operate only in a
designated … area, except”
for HSW, or to restrict
“stationary” vendors from
neighborhoods exclusively
zoned as residential
Articulate
reasoning; Revise
to remove or to
narrow restriction
(e.g. types of
buildings)
(d) Within 20-ft of
merchandise display
window
Not Enforceable City “shall not restrict
sidewalk vendors to
operate only in a
designated …area, except”
for HSW; “economic
competition does not
constitute” HSW reason
Revise to remove or
to narrow restriction
(e) Within 20-ft of
crosswalk
Likely Enforceable
IF for HSW
City can restrict TPM of
permits for HSW
Articulate reasoning
(f) – (h) Impedes traffic or is
hazardous
Enforceable City can restrict TPM of
permits for HSW
No action required
5.05.280 Peddling is prohibited in
parks and adjacent
parking unless as an
approved
concessionaire
Not enforceable City cannot prohibit
vendors within parks,
unless for HSW reasons or
use/enjoyment of park or to
prevent undue concent. of
comm. activity; or if the
peddler is stationary and
the city has already granted
an exclusive
concessionaire permit
Revise to remove or
to narrow restriction
distance
SB 946 Sidewalk Vendors
January 11, 2019
City Code Enforceability
Under SB 946
Limitations Under SB 946 Action/Revisions
Required for Code
or Policies § Description
1.05.070 City has discretion to
criminally prosecute
any violations of Code;
recover costs of
enforcement
Not Enforceable Sidewalk vendors cannot
be criminally cited
Specify penalties in
amended ordinance
Gov. Code § 51039
3.40.330 Peddlers are subject to
City Business Tax
Enforceable No specific restrictions on
local taxations
No action required
8.10.020 -
.130
Food Safety sections,
including the right to
seize/destroy tainted
foods (§ 8.10.110)
Enforceable None No action required
12.05.010 Sidewalks: Individuals
are prohibited from
obstructing free
passage of pedestrians
on sidewalk
Not Enforceable City cannot restrict specific
locations unless for HSW
Articulate reasons;
Revise to narrow
and provide
exception for
sidewalk
vendors/peddlers
12.05.040 Obstructing sidewalk
without prior permission
deemed guilty of
infractions and $500
fine
Not Enforceable Sidewalk vendors cannot
be criminally cited for
unpermitted vending
Revise and narrow:
sidewalk vendors
are subject only to
specific
administrative
penalties IAW Gov.
Code § 51039
9.05.165(m) Stadium: prohibits
individuals from
bringing food and
merchandise for sale
onto parking areas and
“perimeter” sidewalk
Not Enforceable City “shall not restrict
sidewalk vendors to
operate only in a
designated …area, except”
for HSW; “economic
competition does not
constitute” HSW reason
Articulate reasons;
Revise to remove or
to narrow restriction
cc: City Manager’s Office
i:\parks & recreation\2019\18.1801 sidewalk vendors 1-11-19.doc