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HomeMy WebLinkAbout13 - Sidewalk Vending Program in Compliance with California Senate Bill 946TO: FROM: CITY OF NEWPORT BEACH City Council Staff Report PREPARED BY: PHONE: TITLE: ABSTRACT: November 13, 2018 Agenda Item No. 13 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Seimone Jurjis, Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov Benjamin M. Zdeba, AICP, Associate Planner 949-644-3253 An Ordinance Creating a Sidewalk Vending Program in Compliance with California Senate Bill 946 On September 17, 2018, Governor Jerry Brown signed Senate Bill 946, Lara (SB 946), which establishes statewide governance of vending in the public right-of-way and parks. The bill will go into effect on January 1, 2019. Local jurisdictions that wish to regulate sidewalk vending are required to first adopt a program with rules and regulations consistent with SB 946. Staff has drafted the attached ordinance (Attachment A) establishing a program to permit and regulate sidewalk vendors in compliance with SB 946. RECOMMENDATION: a) Find this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance No. 2018-19, An Ordinance of the City Council of the City of Newport Beach, California, Creating a Program to Regulate and Permit Sidewalk Vending Pursuant to California Senate Bill 946, and pass to second reading on November 27, 2018. FUNDING REQUIREMENTS: There is no direct fiscal impact related to this item. There may be indirect costs associated with additional enforcement. Costs associated with issuance and administration of a sidewalk vendor permit are proposed to be recovered through a fee. 13-1 An Ordinance Creating a Sidewalk Vending Program in Compliance with California Senate Bill 946 November 13, 2018 Page 2 BACKGROUND: Senate Bill 946 establishes statewide governance of vending in the public right-of-way and on public parks. Portions of the Newport Beach Municipal Code (NBMC) are presently in conflict with the requirements of SB 946. If the City Council wishes to regulate sidewalk vending', the City's rules and regulations must be consistent with SB 946. In order to ensure the City can properly regulate sidewalk vendors by the effective date of SB 946, the NBMC must be amended at least 30 days prior to January 1, 2019. DISCUSSION: The draft ordinance establishes NBMC Chapter 5.97 as the Sidewalk Vending Program. The proposed program is consistent with SB 946 in that it facilitates the entrepreneurial spirit of small business activities by removing total prohibition on selling goods from portable stands. While encouraging more sidewalk vending, the City equally recognizes the importance of regulation and enforcement of sidewalk vendor activities to promote the health, safety, and welfare of the public. The City's proposed program includes regulations that are necessary to: 1) Ensure no interference with: a) The performance of police, firefighter, lifeguard and emergency medical personnel services; b) The flow of pedestrian or vehicular traffic including ingress into, or egress from, any residence, public building, or place of business, or from the street to the sidewalk, by persons exiting or entering parked or standing vehicles; 2) Provide reasonable access for the use and maintenance of sidewalks, pathways, poles, posts, traffic signs or signals, hydrants, restrooms, trash receptacles, firefighting apparatus, mailboxes, as well as access to locations used for public transportation services; 3) Maximize public access to and along the coast; 4) Reduce exposure to the City for personal injury or property damage claims and litigation; and 5) Ensure sidewalk vending activities only occur in locations where such vending activities would not restrict sidewalk and pathway access and enjoyment to individuals with disabilities. Sidewalk vendors are individuals that sell goods on streets and sidewalks from carts or other non - motorized conveyances. Sidewalk vendors can be either stationary (i.e., set up in one place) or roaming (i.e., moving until stopping to make a transaction). 13-2 An Ordinance Creating a Sidewalk Vending Program in Compliance with California Senate Bill 946 November 13, 2018 Page 3 The following sections provide an overview of some of the rules and regulations put in place by the program. Permitting Requirements Government Code (GOV) Section 51038(C)(4) allows a local authority to require a sidewalk vendor to obtain a permit, subject to certain limitations. Consistent with SB 946, the City's proposed program would require a valid permit to engage in any sidewalk vendor activities. A permit enables the City to effectively regulate individuals who are engaging in sidewalk vending activities. It would further help to ensure sidewalk vendors are complying equally with the rules and regulations set forth by the program. The Revenue Division will issue a permit to a sidewalk vendor when the requirements in Attachment C are satisfied. Permit administration costs will be recovered through the permit fees. MGT, the City's fee study consultant, recommended, because there is no sidewalk vending permit history, staff propose a conservative flat fee based on a professional estimate of time to be spent on the permit process. The studied fee is $155.00, and includes 35 minutes of the Licensing Supervisor's time and 43 minutes of Fiscal Clerk time. Staff intends to bring the new fee resolution to City Council in the near future, after the fee noticing and publication requirements have been satisfied. Limitation on Hours of Operation GOV Section 51038(C)(1) allows a local authority to place 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 imposed on other businesses or uses on the same street. In nonresidential areas, the proposed program would limit hours of operation for sidewalk vending from 7 a.m. to 10 p.m., daily, which is consistent with most business operations throughout the City. NBMC Title 20 (Planning and Zoning) considers a business with a closing hour beyond 11 p.m. as a late -hour operation, a use subject to a discretionary review process. The proposed limitation is comparable and further takes into account the potential for sidewalk vending in mixed-use areas, which have both residential and nonresidential uses. In residential areas, hours of operation would be limited to between 8 a.m. and 9 p.m., daily. These areas tend to be more sensitive to noise and traffic impacts and, therefore, warrant a smaller operational window. These hours are also the same as allowed within NBMC Chapter 5.42 for Solicitation. 13-3 An Ordinance Creating a Sidewalk Vending Program in Compliance with California Senate Bill 946 November 13, 2018 Page 4 Uniquely Prohibited Locations GOV Section 51038(b)(1) prohibits a local authority from requiring a vendor to operate in specific parts of the public right-of-way, except when that restriction is directly related to objective health, safety, or welfare concerns. With a permanent population of approximately 86,000 residents that swells to well over 100,000 residents during the summer months, the City is a tourism hot spot. Each year, the City ensures the safety of at least 10 million beach visitors. These visitors frequent several unique locations and rely heavily on the public right-of-way in these areas to travel from place to place in a safe manner. Obstructions of the use of the right-of-way could pose a health and safety concern, especially in the locations that are most heavily used. The following table summarizes the proposed excluded locations and why it is necessary to prohibit sidewalk vending at each of them. Location Why is it necessary? The Balboa Peninsula Boardwalk This Boardwalk right-of-way is under twelve (12) feet in width in some places and has a centerline, which provides for a high volume of pedestrians, bicyclists, and roller - skaters to travel in each direction. This necessitates restrictions on sidewalk vending along the boardwalk to ensure safety and protect the public from potential injury. The Boardwalk is also identified by the City's certified Local Coastal Program as providing public lateral access along the Balboa Peninsula shoreline. The Balboa Island Walking Trail The Balboa Island walking trail is extremely narrow and has a high volume of pedestrians traveling in each direction. This necessitates restrictions on sidewalk vending on the walking trail to protect the public from injury. The walking trail is also identified in the City's certified Local Coastal Program as providing public lateral access along the Balboa Island shoreline. East Balboa Boulevard, between These locations are extremely popular tourist destinations Adams and A Street; Marine with unusually high pedestrian and vehicular traffic Avenue on Balboa Island; Coast volumes. This necessitates restrictions on sidewalk vending Highway, between Avocado to protect the public from injury. It is important to minimize Avenue and Hazel Drive any interference and allow a clear exit path from the commercial businesses to exit on to the public sidewalk. 2 The Balboa Peninsula Boardwalk runs along the beach for approximately three (3) miles from 361h Street in West Newport to F Street on the Peninsula. 13-4 An Ordinance Creating a Sidewalk Vending Program in Compliance with California Senate Bill 946 The Civic Center Any public property that does not meet the definition of a sidewalk or pathway including, but not limited to, any alley, beach, pier, square, street, street end, or parking lot November 13, 2018 Page 5 The Newport Beach Civic Center is central to all civic duties. It is home to the City's Emergency Operations Center (EOC), which could be activated at any time to manage critical resources in an emergency situation. It also has offices for many key Fire and Life Safety personnel, who may need to leave in a moment's notice. It is important that the pathways leading to and from the Civic Center grounds remain generally free and clear of any obstructions for ensuring public safety. In addition, the turnaround areas at the entry from Avocado Avenue must always remain generally accessible, as emergency vehicles cannot access the parking structure. In an emergency, uninhibited access from the entry turnaround to the library entrance is imperative. As defined by SB 946, a "sidewalk vendor" means a person or person(s) who sells food or merchandise from a sidewalk vending receptacle or from one's person, upon a public sidewalk or pathway. Additional Locational Restrictions The City has a unique physical setting with many visual, recreational, and environmental resources that has influenced the type and form of land uses within the community. The majority of the City is fully developed with a diverse mixture of residential, institutional, commercial, industrial, and recreational and open space uses. Many of the sidewalks within the City are narrow with a width of less than eight (8) feet. Given the amount of pedestrian activity, much of the public realm has been improved with public -serving amenities, such as trash receptacles, benches, bike racks, and street trees. The diverse mixture of land uses on small -lot subdivisions (i.e., 30 feet wide or less) creates a heavily traveled environment with measures in place, such as color -coded curb zones, to help ensure the safety and welfare of the public. The following table summarizes the additional locational restrictions and why it is necessary to have these restrictions in place to ensure public health, safety and welfare. Restriction At least 200 feet from a police station, fire station, lifeguard tower, or lifeguard headquarters At least 200 feet from any certified farmers' market or swap meet At least 200 feet from a temporary special event permit location _ Why is it necessary? These facilities are high in activity with emergency services personnel activated and entering or exiting the facilities during an emergency. Unimpaired access is necessary to ensure public health and safety services are provided whenever they are needed. Consistent with GOV Section 51038(d)(1), which allows a prohibition of sidewalk vendors in the immediate vicinity of such permitted activities. Consistent with GOV Section 51038(d)(2), which allows a prohibition of sidewalk vendors in the immediate vicinity of such permitted activities. 13-5 An Ordinance Creating a Sidewalk Vending Program in Compliance with California Senate Bill 946 November 13, 2018 Page 6 At least 100 feet from other sidewalk A concentration of sidewalk vendors in a single area poses vendors a safety hazard and may limit accessibility for pedestrians; thus, affecting the flow of the right-of-way. At least 100 feet from any public or These land uses are sensitive receptors to noise and any private schools, places of worship, activity that is disruptive to day-to-day operations and the or a large general child daycare overall welfare of said uses. In addition, any queuing in front facility of a school can pose a safety issue with children entering and exiting before and after school. Adjacency of sidewalk vendors near these uses could also attract children off-site. At least 100 feet from any This restriction helps to ensure there are limited intersection of a street and a obstructions adjacent to a street intersection. Such sidewalk obstructions could impede vehicular sight lines and would pose a safety issue for pedestrians and drivers alike. At least 100 feet from any public Adjacency of sidewalk vendors near these uses could picnic area, playground area or attract children off-site and poses a safety issue. playground equipment At least 100 feet from any public community center, pier, athletic field, sailing center softball/baseball diamond basketball court, handball court pickleball court, tennis court, socce field, or volleyball court At least 100 feet from any publi marina These areas are all intended to encourage physical activity and public health and welfare. If not properly regulated, sidewalk vendors could pose an interruption to the intended use. c Any potential overcrowding due to queuing within the marina may interfere with accessibility to and from boating vessels. A concentration of sidewalk vendors and/or similar functions in a single area pose a safety hazard and may limit accessibility for pedestrians; thus, affecting the flow of the right-of-way. In addition, additional obstructions can pose a safety threat with slipping and falling into the water. At least 100 feet from the portion of A concentration of sidewalk vendors and/or similar any City facility that is renting functions in a single area pose a safety hazard and may merchandise or selling food to the limit accessibility for pedestrians; thus, affecting the flow of public or where the rental the right-of-way. Furthermore, these facilities often rent merchandise is stored watercraft and larger equipment. An unobstructed pathway next to the facility is inherent to its operation. At least 100 feet from any police Public safety is of utmost importance. In the event any officer, firefighter, lifeguard or emergency services personnel or vehicles are activated in emergency medical personnel who an area, it is imperative that potential conflicts are are actively performing their duties minimized to the greatest extent feasible as to prevent any or providing services to the public access conflict. At least 25 feet from any fire hydrant In the event of an emergency and for regular maintenance, the Fire Department needs to have constant, uninhibited access to hydrants citywide. Adequate space must always be provided to allow for an apparatus (i.e., fire truck) to access the hydrant. 13-6 An Ordinance Creating a Sidewalk Vending Program in Compliance with California Senate Bill 946 At least 25 feet from any curb, which has been designated as white, yellow, green, blue, or red zone, or a bus zone At least 25 feet from any automated teller machine (ATM) At least 25 feet from any driveway, alley or entrance to a parking lot or parking garage At least 25 feet from any entrance or' exit to a building, structure or facility At least 25 feet from any trash receptacle, bike rack, bench, bus stop or similar public use item Sidewalks and pathways must be at least 8 feet in width or larger Stationary sidewalk vendors not permitted in any park where City has signed an agreement for concessions that exclusively permits sale of food or merchandise by a single concessionaire Stationary sidewalk vendors not permitted in any exclusively residential area November 13, 2018 Page 7 These curb and public right-of-way areas have been designated as special use zones dependent upon the color of the curb. Allowing sidewalk vendors to operate in these special use zones could pose as an obstruction inconsistent with the intended restrictions. For example, a sidewalk vendor in a red zone could hinder emergency access or a sidewalk vendor in a yellow zone could hinder loading and unloading. ATMs are frequently used, especially in areas with a healthy tourism industry. This restriction will help to limit conflicts between sidewalk vendors and patrons of the ATM who may also be queuing. It will also limit obstructions to the public right-of-way that negatively affect accessibility. Allowing sidewalk vending operations within 25 feet from any driveway, alley, or entrance to a parking lot or parking garage could potentially pose a safety issue by obstructing vehicular line of sight while obstructing vehicular access or allowing queuing that encroach into vehicular driveway. Allowing sidewalk vending operations within 25 feet from any entrance or exit could result in inadequate access to the building or inadequate egress from the building in an emergency situation. An ADA accessible path of travel could further be impinged. Allowing sidewalk vending operations within 25 feet of any of these public use items could negatively affect the welfare of the public. Sidewalk vending operations could obstruct the view of these items and discourage public use of these items, as they were intended. Further, sidewalk vending adjacent to any of these public use items could hinder required access for a disabled person. Many of the sidewalks and pathways in the City are less than eight (8) feet wide. Sidewalk vending in these areas would unreasonably interfere with the flow of pedestrians and disrupt access for persons with disabilities. Assuming a sidewalk vending receptacle that is four (4) feet by four (4) feet, this would leave a minimum of four (4) feet not withstanding any queues or persons patronizing the sidewalk vendor. This restriction is consistent with GOV Section 51038(2)(A), which allows prohibition of stationary sidewalk vendors in public parks that have a single -concessionaire agreement. Also consistent with State requirements, roaming vendors are not affected by this restriction. This restriction is consistent with GOV Section 51038(4)(B), which allows the prohibition of stationary sidewalk vendors in areas zoned exclusively residential. Consistent with State requirements, roaming vendors are not affected by this restriction. 13-7 An Ordinance Creating a Sidewalk Vending Program in Compliance with California Senate Bill 946 November 13, 2018 Page 8 Sidewalk Vending in Public Parks GOV Section 51038(b)(2)(B) allows local jurisdictions to adopt additional requirements regulating the time, place, and manner of sidewalk vending in a park owned or operated by the local jurisdiction if the requirements are: 1) directly related to objective health, safety, or welfare concerns; 2) necessary to ensure the public's use and enjoyment of natural resources and recreational opportunities; or 3) necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park. The City has approximately 278 acres of developed parks with parklands ranging in size from mini -parks, such as the Lower Bay Park to the 39 -acre Bonita Canyon Sports Park. The City's parks, bicycle and pedestrian trails, recreational facilities, and coastal resources such as beaches play an important role in the physical, mental, social, and environmental health of Newport Beach residents and visitors. Each park is divided into one of two categories, an active park or a passive park. Active parks contain one or more sporting fields or actively encourage physical activity. All of the City's active parks are listed as "community parks" and "neighborhood parks" in City Council Policy B-1 (Attachment D). Passive parks are typically less developed than an active park, but may contain features such as walking tracks, gardens, seating, barbecues, and picnic areas. They do not usually contain sports infrastructure or encourage strenuous physical activity, although they may contain play equipment. The City's passive parks are listed as "view parks" in City Council Policy B-1 (Attachment D). Within passive parks, the proposed program would prohibit sidewalk vendors from approaching persons. This commercial activity would detract from enjoyment of the natural resources, including scenic views, and passive recreational opportunities while interfering with the park's intended use. Within active parks, the proposed program would also prohibit sidewalk vendors from approaching persons engaged in or spectating a sporting activity. Active parks are intended to encourage physical activity. If not properly regulated, sidewalk vendors could pose an interruption to the park's intended use. Enforcement, Penalties, and Appeals GOV Section 51039 outlines limitations on punishing sidewalk vendors for violating parameters of the City's program. The program encourages efficient enforcement through its operating conditions, such as requiring conspicuous display of a sidewalk vendor permit and requiring the allowance of certain City officials to inspect the operation at all times. 13-8 An Ordinance Creating a Sidewalk Vending Program in Compliance with California Senate Bill 946 November 13, 2018 Page 9 Violations of NBMC Chapter 5.97, Sidewalk Vending Program would be enforced through administrative fines established in SB 946 and potential revocation of an issued permit. Also included is an appeals framework, which provides due process for individuals who are in disagreement with an issued administrative citation or who desire to contest revocation of an issued permit. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Draft Sidewalk Vending Program Ordinance Attachment B — Senate Bill No. SB -946 Attachment C — Sidewalk Vendor Checklist Attachment D — List of Passive and Active Parks 13-9 ATTACHMENT A ORDINANCE NO. 2018-19 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, CREATING A PROGRAM TO REGULATE AND PERMIT SIDEWALK VENDING PURSUANT TO CALIFORNIA SENATE BILL 946 WHEREAS, on September 17, 2018, California Governor Edmund Gerald Brown signed Senate Bill ("SB") 946 into law, which regulates sidewalk vendors throughout the state including within the City of Newport Beach ("City"); WHEREAS, SB 946 takes effect January 1, 2019, and limits the authority of the City to regulate sidewalk vendors, except as provided under California Government Code Sections 51038 and 51039; WHEREAS, the Newport Beach Municipal Code ("NBMC") currently prohibits or limits the activities of sidewalk vendors, which places the NBMC in conflict with SB 946; WHEREAS, the City Council adopts this ordinance under the authority of SB 946 and the City Council finds the regulations and requirements provided in this ordinance are directly related to the City's objective in protecting the health, safety and welfare of its residents, businesses, and visitors; WHEREAS, the City Council finds this ordinance regulates the time, place, and manner of sidewalk vending, as specified, to address health, safety, and welfare concerns; WHEREAS, the City Council finds the regulations in this ordinance, including, but not limited to those regulations governing minimum sidewalk widths, sidewalk vending receptacle sizes, distance requirements, and food and merchandise storage are necessary to ensure compliance with the federal Americans with Disabilities Act of 1990 (Public Law 101-336) and other disability access standards; WHEREAS, the City Council finds this ordinance is necessary to ensure the public's use and enjoyment of natural resources and recreational opportunities; and WHEREAS, the City Council finds this ordinance is necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of City parks. 13-10 Ordinance No. 2018 - Page 2 of 24 NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: Section 5.11.070 is hereby added to NBMC Chapter 5.11 to read as follows.. 5.11.070 Exception. This Chapter shall not apply to sidewalk vendors to the extent their activity is regulated under Chapter 5.97 of this Code, or any successor chapter. Section 2: Subsection "H" is hereby added to NBMC Section 5.42.030 to read as follows: H. Sidewalk vendors to the extent their activity is regulated under Chapter 5.97 of this Code, or any successor chapter. Section 3: NBMC Chapter 5.97 is added to Title 5 of the NBMC to read as follows: Chapter 5.97 SIDEWALK VENDING PROGRAM Sections: 5.97.010 Purpose 5.97.020 Definitions 5.97.030 Permit Required 5.97.040 Issuance of Permit 5.97.050 Operating Conditions 5.97.060 Prohibited Activities and Locations 5.97.070 Penalties 5.97.080 Appeals 5.97.010 Purpose The purpose of this chapter is to establish a sidewalk vendor permitting and regulatory program that complies with Senate Bill 946 (Chapter 459, Statutes 2018). The provisions of this chapter allow the City to encourage small business activities by removing total prohibitions on portable food stands and certain forms 13-11 Ordinance No. 2018 - Page 3 of 24 of solicitation while still permitting regulation and enforcement of unpermitted sidewalk vending activities to protect the publics' health, safety and welfare. A. The City Council hereby finds that, to promote the health, safety and welfare, restrictions on street vending are necessary to: 1. Ensure no interference with: a. The performance of police, firefighter, lifeguard and emergency medical personnel services; b. The flow of pedestrian or vehicular traffic including ingress into, or egress from, any residence, public building, or place of business, or from the street to the sidewalk, by persons exiting or entering parked or standing vehicles; 2. Provide reasonable access for the use and maintenance of sidewalks, pathways, poles, posts, traffic signs or signals, hydrants, restrooms, trash receptacles, firefighting apparatus, mailboxes, as well as access to locations used for public transportation services; 3. Maximize public access to and along the coast; and 4. Reduce exposure to the City for personal injury or property damage claims and litigation. B. The City Council hereby finds that the unique characteristics of the City require certain restrictions on sidewalk vending as follows: 1. The Balboa Island walking trail is extremely narrow and has a high volume of pedestrians traveling in each direction. Restrictions on sidewalk vending are necessary to protect the public from injury given the Balboa Island walking trail's popularity as a tourist destination; 2. The boardwalk is under twelve (12) feet in width in places and has a centerline, which provides for a high volume of pedestrians, bicyclists, and rollerskaters to travel in each direction. Restrictions on sidewalk vending are necessary to protect the public from injury given the Boardwalk's popularity as a tourist destination; 3. East Balboa Boulevard between Adams Street and A Street, Marine Avenue on Balboa Island, and East Coast Highway between Avocado Avenue and Hazel Drive, are extremely popular tourist destinations with unusually high pedestrian and vehicular traffic volumes. Restrictions on 13-12 Ordinance No. 2018 - Page 4 of 24 sidewalk vending are necessary to protect the public from injury given the popularity of these tourist destinations; 4. The Civic Center contains the City's emergency operation center, the headquarters for the Fire Department, and other critical infrastructure. Restrictions on sidewalk vending are necessary to ensure that fire equipment is easily accessible and critical infrastructure is maintained and accessible at all times; 5. Many of the City's parks provide passive recreational opportunities and restrictions on sidewalk vending are necessary to protect the natural resources, recreational opportunities, as well as scenic and natural character of these parks; 6. Restrictions on sidewalk vending at active parks is necessary to protect the health, safety and welfare of those persons engaged in active sports activities as well as spectators of sporting activities; and 7. Many of the sidewalks and pathways in the City are under eight (8) feet wide and sidewalk vending in these areas would unreasonably interfere with the flow of pedestrians and disrupt access for persons with disabilities. 5.97.020 Definitions A. If a term or phrase is not defined in this part, or elsewhere in this Code, the most common dictionary definition is presumed to be correct. B. As used in this chapter, the following terms and phrases shall have the meaning ascribed to them in this part, unless the context in which they are used clearly requires otherwise. 1. "Alcohol" means an "alcoholic beverage" as defined in Section 20.70.020(A) of this Code, or any successor section; 2. "Balboa Island walking trail" means the pathway area that borders the water and Grand Canal on Balboa Island and Little Balboa Island; 3. "Beach" means any public ocean front, or bay front beach within the City, including ocean or bay public piers, public floats, public wharves or public strands adjoining public ocean front or bay front beach areas; 4. "Boardwalk" or "Oceanfront Boardwalk" means the concrete walkway approximately twelve (12) to twenty-two (22) feet in width immediately 13-13 Ordinance No. 2018 - Page 5 of 24 adjacent to the sandy ocean beach (except where the beach has been improved with parking lots, parks or school playgrounds) and that runs from 36th Street to a point east of E Street. The Boardwalk is designated as West Ocean Front and East Ocean front on the official City atlas; 5. "Certified farmers' market" means a location operated in accordance with Chapter 10.5 (commencing with Section 47000) of Division 17 of the Food and Agricultural Code and any regulations adopted pursuant to that chapter, or any successor chapter; 6. "Civic Center" or "City Hall" means the building, facilities, and parking structure located at 100 Civic Center Drive, Newport Beach, California, 92660; 7. "Fire station" means any facility where fire engines and other equipment of the City's Fire Department are housed; 8. "Food" means any item provided in Health and Safety Code Section 113781, or any successor section; 9. "Heating element" means any device used to create heat for food preparation; 10. "Lifeguard headquarters" means the lifeguard facilities located at the base of Newport Pier, alongside the Balboa Pier, and on Corona Del Mar State Beach; 11. "Marijuana" means the substances defined in Code Section 10.70.020(A), or any successor section; 12. "Merchandise" means any item(s) that can be sold and immediately obtained from a sidewalk vendor, which is not considered food. Items for rent shall not be considered merchandise; 13. "Park" means the parks listed in City Council Policy B-1, Exhibit A, or any successor policy. The City has both active parks and passive parks: a. "Active parks" contain one (1) or more sporting fields or actively encourage physical activity. The City's active parks are 13-14 Ordinance No. 2018 - Page 6 of 24 listed as "community parks" and "neighborhood parks" in City Council Policy B-1, Exhibit A; b. "Passive parks" are typically less developed than an active park, but may contain features such as walking tracks, gardens, seating, barbecues, and picnic areas. They do not usually contain sports infrastructure or encourage strenuous physically activity, although they may contain playground equipment. The City's passive parks are listed as "view parks" in City Council Policy B-1, Exhibit A; 14. "Pathway" means a paved path or walkway owned by the City or other public entity that is specifically designed for pedestrian travel, other than a sidewalk; 15. "Person" means and includes all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, Massachusetts Trust, business or common law trusts, societies, and individuals transacting and carrying on any business in the City; 16. "Police station" means any facility where police vehicles and other equipment of the City's Police Department are housed; 17. "Public property" means all property owned or controlled by the City, including, but not limited to, buildings, alleys, beaches, boardwalks, parks, pathways, streets, parking lots, sidewalks, and walking trails; 18. "Residential" means any area zoned exclusively as residential in Title 20 or Title 21 of the Code or is designated exclusively for residential use as part of a PC (Planned Community) Zoning District, Planned Community Development Plan, Planned Residential District, Specific Plan District, Specific Plan Area, or residential overlay district or their equivalent; 19. "Roaming sidewalk vendor" means a sidewalk vendor who moves from place -to -place and stops only to complete a transaction; 20. "Sidewalk" means that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation specifically 13-15 Ordinance No. 2018 - Page 7 of 24 designed for pedestrian travel and that is owned by the City or other public entity; 21. "Sidewalk vending receptacle" or "sidewalk vendor receptacle" means a pushcart, stand, display, pedal -driven cart, wagon, showcase, rack, or other non -motorized conveyance used for sidewalk vending activities; 22. "Sidewalk vendor" or "vendor" means a person(s) who sells food or merchandise from a sidewalk vending receptacle or from one's person, upon a public sidewalk or pathway, 23. "Sidewalk vendor activities" or "sidewalk vending activity" means actions that qualify a person as a sidewalk vendor or actions done in anticipation of becoming a sidewalk vendor such as, but not limited to, placement, or maintenance of any sidewalk vendor receptacles; 24. "Special event" means any special event described in Section 11.03.020(B), or any successor section; 25. "Stationary sidewalk vendor" means a sidewalk vendor who vends from a fixed location; and 26. "Swap meet" means a location operated in accordance with Article 6 (commencing with Section 21660) of Chapter 9 of Division 8 of the Business and Professions Code, and any regulations adopted pursuant to that chapter, or any successor chapter. 5.97.030 Permit Required A. No person, either for themselves or any other person, shall engage in any sidewalk vendor activities within the City without first applying for and receiving a permit from the Finance Director, or the Finance Director's designee, under this chapter. B. A written application for a sidewalk vendor permit shall be filed with the Finance Director, or Finance Director's designee, on a form provided by the City, and shall contain the following information: 13-16 Ordinance No. 2018 - Page 8 of 24 1. The name, address, and telephone number of the person applying to become a sidewalk vendor; 2. The name, address, and telephone number of the person who will be in charge of any roaming sidewalk vendors, sidewalk vending activity and/or be responsible for the person(s) working at the sidewalk vending receptacle; 3. The name, address, and telephone number of all persons that will be employed as roaming sidewalk vendors or at a sidewalk vending receptacle; 4. The number of sidewalk vending receptacles the sidewalk vendor will operate within the City under the permit; 5. The location(s) in the City where the sidewalk vendor intends to operate; 6. The day(s) and hours of operation the sidewalk vendor intends to operate at such location(s); 7. Whether the vendor intends to operate as a stationary sidewalk vendor or a roaming sidewalk vendor and, if roaming, the intended path of travel; 8. The dimensions of the sidewalk vendor's sidewalk vending receptacle(s), including a picture of each sidewalk vending receptacle operating under the permit and any signs that will be affixed thereto; 9. Whether the sidewalk vendor will be selling food, merchandise, or both; 10. If the sidewalk vendor is selling food, a description of the type of food to be sold, whether such foods are prepared on site, whether such foods will require a heating element inside or on the sidewalk vending receptacle for food preparation, and the type of heating element, if any; 11. If the vendor is selling merchandise, a description of the merchandise to be sold; 13-17 Ordinance No. 2018 - Page 9 of 24 12. A copy of the health permit required for any sidewalk vendors selling food, as required by Chapter 6.08 of the Code, or any successor chapter; 13. Proof the person possesses a valid California Department of Tax and Fee Administration seller's permit which notes the City as a location or sub - location, which shall be maintained for the duration of the sidewalk vendor's permit; 14. An acknowledgment that the sidewalk vendor will comply with all other generally applicable local, state, and federal laws; 15. A certification that, to their knowledge and belief, the information contained within the application is true; 16. An agreement by the sidewalk vendor to defend, indemnify, release and hold harmless the City, its City Council, boards, commissions, officers and employees from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to the permit or the vendor's sidewalk vending activities. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, or proceeding whether incurred by the permittee, City, and/or the parties initiating or bringing such proceeding; 17. An acknowledgement that use of public property is at the sidewalk vendor's own risk, the City does not take any steps to ensure public property is safe or conducive to the sidewalk vending activities, and the sidewalk vendor uses public property at the their own risk; 18. An acknowledgement that the sidewalk vendor will obtain and maintain throughout the duration of any permit issued under this chapter, any insurance required by the City's Risk Manager; 19. If the sidewalk vendor has operated in the City in the past, proof of prior sales tax allocation to the City; and 13-18 Ordinance No. 2018 - Page 10 of 24 20. Any other relevant information required by the Finance Director, or the Finance Director's designee. C. Each application for a sidewalk vendor permit shall be accompanied by a non-refundable application fee as established by resolution of the City Council. The application and permit is only applicable to the individual(s) named on the application. If said permit is approved, it shall not be necessary for the permittee to obtain a City business license to carry on the activities authorized by said permit, unless such permittee maintains a permanent place of business within the City. 5.97.040 Issuance of Permit A. Within thirty (30) calendar days of receiving a complete application, the Finance Director, or the Finance Director's designee, may issue a sidewalk vendor permit, with appropriate conditions, as provided for herein, if he or she finds based on all of the relevant information that: 1. The conduct of the sidewalk vendor will not unduly interfere with traffic or pedestrian movement, or tend to interfere with or endanger the public peace or rights of nearby residents to the quiet and peaceable enjoyment of their property, or otherwise be detrimental to the public peace, health, safety or general welfare; 2. The conduct of the sidewalk vendor will not unduly interfere with normal governmental or City operations, threaten to result in damage or detriment to public property, or result in the City incurring costs or expenditures in either money or personnel not reimbursed in advance by the vendor; 3. The conduct of such sidewalk vending activity will not constitute a fire hazard, and all proper safety precautions will be taken; 4. The conduct of such sidewalk vending activity will not require the diversion of police officers to properly police the area of such activity as to interfere with normal police protection for other areas of the City; 13-19 Ordinance No. 2018 - Page 11 of 24 5. The sidewalk vendor has paid all previous administrative fines, completed all community service, and completed any other alternative disposition associated in any way with a previous violation of this chapter; 6. The sidewalk vendor has not had a permit revoked within the past twelve (12) months; 7. The sidewalk vendor's application contains all required information; 8. The sidewalk vendor has not made a materially false, misleading or fraudulent statement of fact to the City in the application process; 9. The sidewalk vendor has satisfied all the requirements of this chapter; 10. The sidewalk vendor has paid all applicable fees as set by City Council resolution, 11. The sidewalk vendor's sidewalk vending receptacle and proposed activities conform to the requirements of this chapter; 12. The sidewalk vendor has adequate insurance to protect the City from liability associated with the sidewalk vendor's activities, as determined by the City's Risk Manager, or the Risk Manager's designee, and, if required by the City, the City has been named as an additional insured; and 13. The sidewalk vendor has satisfactorily provided all information requested by the Finance Director, or the Finance Director's designee, to consider the vendor's application. B. A sidewalk vendor permit is non -transferable. Any change in ownership or operation of a sidewalk vendor or sidewalk vending receptacle requires a new permit under this chapter. C. All permits issued under this chapter shall expire 12 months from date of issuance. 13-20 Ordinance No. 2018 - Page 12 of 24 5.97.050 Operating Conditions All sidewalk vendors are subject to the following operating conditions when conducting sidewalk vending activities: A. All food and merchandise shall be stored either inside or affixed to the sidewalk vendor receptacle or carried by the sidewalk vendor. Food and merchandise shall not be stored, placed, or kept on any public property. If affixed to the sidewalk vendor receptacle, the overall space taken up by the sidewalk vendor receptacle shall not exceed the size requirements provided in this section; B. The sidewalk vendor permit shall be displayed conspicuously at all times on the sidewalk vending receptacle or the sidewalk vendor's person. If multiple sidewalk vendors are staffing a sidewalk vendor receptacle or working as roaming sidewalk vendors, each person shall wear their permit on their person in a conspicuous manner; C. Sidewalk vendors shall not leave their sidewalk vending receptacle unattended to solicit business for their sidewalk vending activities; D. All signage and advertising related in any way to the sidewalk vendor shall be attached to the sidewalk vending receptacle, if any, or the sidewalk vendor's person; E. Sidewalk vendors shall not use any electrical, flashing, wind powered, or animated sign; F. Sidewalk vending receptacles shall not be stored on public property and shall be removed when not in active use by a sidewalk vendor; G. All sidewalk vendors shall allow a police officer, firefighter, life safety services officer, code enforcement officer, health inspector, or other government official charged with enforcing laws related to the street vendor's activities, at any time, to inspect their sidewalk vending receptacle for compliance with the size requirements of this chapter and to ensure the safe operation of any heating elements used to prepare food, 13-21 Ordinance No. 2018 - Page 13 of 24 H. Sidewalk vending receptacles and any attachments thereto shall not exceed a total height of four (4) feet, a total width of four (4) feet, and a total length of four (4) feet; I. No sidewalk vending receptacle shall contain or use propane, natural gas, batteries, or other explosive or hazardous materials; J. If a sidewalk vending receptacle requires more than one (1) person to conduct the sidewalk vending activity, all sidewalk vendors associated with the sidewalk vending receptacle shall be within five (5) feet of the sidewalk vending receptacle when conducting sidewalk vending activities; K. Sidewalk vendors that sell food shall have in their possession at all times they are conducting sidewalk vending activities, the health permit required by Chapter 6.08 of this Code, or any successor chapter; L. Sidewalk vendors that sell food shall maintain a trash container in or on their sidewalk vending receptacle and shall not empty their trash into public trashcans. The size of the vendor's trash container shall be taken into account when assessing the total size limit of a sidewalk vending receptacle. Sidewalk vendors shall not leave any location without first picking up, removing, and disposing of all trash or refuse from their operation; M. Sidewalk vendors shall immediately clean up any food, grease or other fluid or item related to sidewalk vending activities that falls on public property,- N. roperty; N. Sidewalk vendors shall maintain a minimum four (4) foot clear accessible path free from obstructions, including sidewalk vending receptacles and customer queuing area; O. Sidewalk vendors shall comply with the noise standards provided in Chapters 10.26 and 10.28 of this Code, or any successor chapters; P. In passive parks, sidewalk vendors shall not approach persons to sell food or merchandise,- Q. erchandise; Q. In active parks, sidewalk vendors shall not interfere in any way with anyone engaged in a sporting activity and shall not approach spectators who are watching a sporting activity to sell food or merchandise; and 13-22 Ordinance No. 2018 - Page 14 of 24 R. Sidewalk vendors shall ensure that all required insurance is in effect prior to conducting any sidewalk vendor activities and maintained for the duration of the permit. 5.97.060 Prohibited Activities and Locations A. Sidewalk vendors shall comply with all operating conditions including those conditions set forth in Section 5.97.050, or any successor sections. B. Sidewalk vending receptacles shall not touch, lean against or be affixed at any time to any building or structure including, but not limited to lampposts, parking meters, mailboxes, traffic signals, fire hydrants, benches, bus shelters, newsstands, trashcans or traffic barriers. C. Sidewalk vendors shall not engage in any of the following activities - 1 . ctivities: 1. Renting merchandise to customers; 2. Displaying merchandise or food that is not available for immediate sale; 3. Selling of alcohol, marijuana, adult oriented material, tobacco products, products that contain nicotine or any product used to smoke/vape nicotine or marijuana; 4. Using an open flame on or within any sidewalk vending receptacle; 5. Using an electrical outlet or power source that is owned by the City or another person other than the sidewalk vendor; 6. Conducting sidewalk vending activities: a. Anywhere in the City between the hours of 10:00 p.m. and 7:00 a.m. daily; b. On sidewalks or pathways directly adjacent to or within residential areas, between the hours of 9:00 p.m. and 8:00 a.m. daily; 13-23 Ordinance No. 2018 - Page 15 of 24 7. Continuing to offer food or merchandise for sale, following, or accompanying any person who has been offered food or merchandise after the person has asked the sidewalk vendor to leave or after the person has declined the offer to purchase food or merchandise; 8. Knowingly making false statements or misrepresentations during the course of offering food or merchandise for sale; 9. Blocking or impeding the path of the person(s) being offered food or merchandise to purchase; 10. Making any statements, gesture, or other communication which a reasonable person in the situation of the person(s) being offered food or merchandise to purchase would perceive to be a threat and which has a reasonable likelihood to produce in the person(s) a fear that the threat will be carried out; 11. Touching the person(s) being offered food or merchandise without that person(s)' consent; 12. Advertising any product or service that is not related to the food or merchandise being offered for immediate sale; or 13. Placing their sidewalk vending receptacles outside of any pathway or sidewalk when engaging in sidewalk vending activities. D. Sidewalk vendors shall not engage in sidewalk vending activities at the following locations: 1. The Boardwalk, including any portion of paved path extending from the Boardwalk into the beach; 2. The Balboa Island walking trail; 3. East Balboa Boulevard between Adams Street and A Street, Marine Avenue on Balboa Island, and East Coast Highway between Avocado Avenue and Hazel Drive; 4. The Civic Center; 13-24 Ordinance No. 2018 - Page 16 of 24 5. Any public property that does not meet the definition of a sidewalk or pathway including, but not limited to, any alley, beach, pier, square, street, street end, or parking lot; 6. Within two -hundred (200) feet of: a. A police station; b. A fire station; C. A lifeguard tower; d. Lifeguard headquarters; e. A permitted certified farmers' market or swap meet during the limited operating hours of that certified farmers' market or swap meet; f. An area designated for a special event permit issued by the City, during the limited duration of the special event, if the City provides the sidewalk vendor any notice, business interruption mitigation, or other rights the City provided to any affected businesses or property owners under the City's special event permit; 7. Within one -hundred (100) feet of: a. Another sidewalk vendor; b. A public or private school, a place of worship, or a large or general child day-care facility; C. The intersection of a street and a sidewalk; d. Any public picnic area, playground area or playground equipment; 13-25 Ordinance No. 2018 - Page 17 of 24 e. Any public community center, pier, athletic field, sailing center, softball/baseball diamond, basketball court, handball court, pickleball court, tennis court, soccer field, or volleyball court, f. Any public marina; g. The portion of any City facility that is renting merchandise or selling food to the public or where the rental merchandise is stored; h. Any police officer, firefighter, lifeguard or emergency medical personnel who are actively performing their duties or providing services to the public; 8. Within twenty-five (25) feet of a: a. Fire hydrant; b. Curb which has been designated as white, yellow, green, blue, or red zone, or a bus zone; C. Automated teller machine; d. Driveway, alley, or entrance to a parking lot or parking garage; e. Entrance or exit to a building, structure or facility; or f. Trash receptacle, bike rack, bench, bus stop, restroom, or similar public use items. E. Stationary sidewalk vendors shall not sell food or merchandise or engage in any sidewalk vending activities: 1. On any sidewalk or pathway that is not a minimum width of eight (8) feet; 2. At any park where the City has signed an agreement for concessions that exclusively permits the sale of food or merchandise by a concessionaire; or 13-26 Ordinance No. 2018 - Page 18 of 24 3. On sidewalks or pathways directly adjacent to or within residential areas. 5.97.070 Penalties Violations of this chapter shall not be prosecuted as infractions or misdemeanors and shall only be punished by the following administrative citation and revocation structure: A. Except as otherwise provided in this chapter, any violation of this chapter shall be assessed administrative fines in the following amounts: 1. An administrative fine not exceeding one hundred dollars ($100) for a first violation; 2. An administrative fine not exceeding two hundred dollars ($200) for a second violation within one (1) year of the first violation; 3. An administrative fine not exceeding five hundred dollars ($500) for each additional violation within one (1) year of the first violation; B. If a sidewalk vendor violates any portion of this chapter and cannot present the citing officer with a proof of a valid permit, the sidewalk vendor shall be assessed administrative fines in the following amounts: 1. An administrative fine not exceeding two hundred fifty dollars ($250) for a first violation, 2. An administrative fine not exceeding five hundred dollars ($500) for a second violation within one (1) year of the first violation; 3. An administrative fine not exceeding one thousand dollars ($1,000) for each additional violation within one (1) year of the first violation; C. Upon proof of a valid permit issued by the City, the administrative fines set forth in Subsection 5.97.070(B) shall be reduced to the administrative fines set forth in Subsection 5.97.070(A), or any successor sections; and 13-27 Ordinance No. 2018 - Page 19 of 24 D. The Finance Director, or the Finance Director's designee, may revoke a permit issued to a sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations within one (1) year of the first violation. 5.97.080 Appeals A. Administrative citations shall be appealed in the following manner: 1. Any recipient of an administrative citation may request an ability -to - pay determination, contest that there was a violation of the Code, and/or that he or she is the responsible person, by completing a request for hearing form and returning to the City's Finance Department in accordance with Section 1.05.060(A) of this Code, or any successor section. Notwithstanding the time limits set forth in Section 1.05.060(A), any person requesting a hearing and ability -to -pay determination may file the request within the time frames set forth in Government Code Section 51039(f)(1), or any successor section; 2. Any recipient of an administrative citation may file for a hardship waiver in accordance with Section 1.05.060(6) of this Code, or any successor section; 3. All appeals of administrative citations shall be heard by a Hearing Officer designated pursuant to Section 1.05.070(A) of this Code, or any successor section, and the Hearing Officer may be disqualified as provided in Section 1.05.070(B), or any successor section; 4. In addition to the powers set forth in Section 1.05.070(C)(1) through (4), and (6) through (7) of this Code, or any successor section, the Hearing Officer shall have the power to: a. Reduce the fine based upon the person's ability to pay the fine; b. If the Hearing Officer finds the person meets the criteria described in subdivision (a) or (b) of Government Code Section 68632, or any successor section, the Hearing Officer, shall order the City to accept, in full satisfaction, twenty (20) percent of the administrative fine imposed pursuant to this chapter; C. The Hearing Officer may allow the person to complete community service in lieu of paying the total administrative fine, may waive the administrative fine, or may offer an alternative disposition; 13-28 Ordinance No. 2018 - Page 20 of 24 5. All appeals of administrative citations shall be conducted in accordance with Section 1.05.080 of this Code, or any successor section; 6. After considering all of the testimony and evidence submitted at the hearing, the Hearing Officer shall issue a written decision within ten (10) days of the hearing and shall list in the decision the reasons for that decision; a. The Hearing Officer may uphold or deny the administrative citation or take any other action within the Hearing Officer's power; b. If the Hearing Officer determines that the administrative citation should be upheld and a fine assessed, then the amount of the fine assessed that is on deposit with the City shall be retained by the City and any remainder on deposit with the City, if any, shall be promptly returned, c. If the Hearing Officer determines that the administrative citation should be denied, or imposes an alternative disposition, and the fine was deposited with the City, then the City shall promptly refund the amount of the deposited fine; d. The decision of the Hearing Officer shall be final; and e. The recipient of the administrative citation shall be served with a copy of the Hearing Officer's written decision in the manner prescribed by Section 1.08.080 of this Code, or any successor section. B. Decisions of the Finance Director, or the Finance Director's designee, to revoke a permit shall be appealed in the following manner: 1. Appeals shall be initiated within fifteen (15) calendar days of service of notice of the decision in accordance with Section 1.08.080 of this Code, or any successor section, 2. Appeals of decisions shall be made in writing on forms provided by the City; 3. Decisions that are appealed shall not become effective until the appeal is resolved; 4. All appeals of decisions shall be heard by a Hearing Officer designated pursuant to Section 1.05.070(A) of this Code, or any successor 13-29 Ordinance No. 2018 - Page 21 of 24 section, and the Hearing Officer may be disqualified as provided in Section 1.05.070(B), or any successor section. 5. The Hearing Officer shall have the powers set forth in Section 1.05.070(C)(1) through (4), and (6) of this Code, or any successor section; 6. A hearing before the Hearing Officer may be set for a date that is not less than fifteen (15) and not more than sixty (60) days from the date that the request for hearing is filed in accordance with the provisions of this chapter. The responsible person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) days prior to the date of the hearing. The City and responsible person may mutually agree to waive, modify or change the date of the preceding; 7. All appeals of decisions shall be conducted in accordance with Section 1.05.080(B), (D), (F), and (G), or any successor section, and shall comply with the following additional procedures: a. At least ten (10) days prior to the hearing, the responsible person requesting the hearing shall be provided with copies of the citations, reports and other documents or evidence submitted or relied upon by the Finance Director, or the Finance Director's designee; b. No other discovery is permitted. Formal rules of evidence shall not apply. Administrative hearings are intended to be informal in nature. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rules, which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this State. Irrelevant and unduly repetitious evidence shall be excluded; C. The failure of any responsible person who has filed an appeal to appear at the hearing shall constitute a failure to exhaust their administrative remedies; 8. After considering all of the testimony and evidence submitted at the hearing, the Hearing Officer shall issue a written decision within ten (10) days of the hearing and shall list in the decision the reasons for that decision: a. The Hearing Officer may uphold or deny the decision and the decision of the Hearing Officer shall be final; and 13-30 Ordinance No. 2018 - Page 22 of 24 b. The responsible person who has filed an appeal shall be served with a copy of the Hearing Officer's written decision, by the City Clerk, in the manner prescribed by Section 1.08.080 of this Code, or any successor section. Section 4: NBMC Subsection 6.05.010(J) is amended to read as follows: J. "Retail food vendor" means any store, shop, sales outlet, sidewalk vendor as defined in Chapter 5.97 of this Code, or any successor chapter, or other establishment, including a grocery store or a delicatessen, other than a restaurant, located within the City of Newport Beach that sells prepared food. Section 5: Subsection "8" is hereby added to NBMC Subsection 10.08.030(8) to read as follows: 8. For sidewalk vendors in compliance with Chapter 5.97 of this Code, or any successor chapter. Section 6: Subsection "I" is hereby added to NBMC Section 11.04.070 to read as follows: I. Engaging in any sidewalk vending activity unless conducted in compliance with Chapter 5.97 of this Code, or any successor chapter. Section 7: Subsection "C" is hereby added to NBMC Section 11.04.140 to read as follows: C. Notwithstanding this chapter, unlawful sidewalk vending activities shall be punished in accordance with Chapter 5.97 of this Code, or any successor chapter. Section 8: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 9: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. 13-31 Ordinance No. 2018 - Page 23 of 24 Section 10: The City Council finds the introduction and adoption of this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 11: Except as expressly modified in this ordinance, all other sections, subsections, sentences, clauses or phrases set forth in the Newport Beach Municipal Code shall remain unchanged and shall be in full force and effect. Section 12: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the day of 2018, and adopted on the day of , 2018, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS Marshall "Duffy" Duffield Mayor ATTEST: Leilani I. Brown City Clerk 13-32 Ordinance No. 2018 - Page 24 of 24 APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp City Attorney 13-33 Attachment B Senate Bill No. SB 946 13-34 Senate Bill No. 946 CHAPTER 459 An act to add Chapter 6.2 (commencing with Section 51036) to Part 1 of Division 1 of Title 5 of the Government Code, relating to sidewalk vendors. [Approved by Governor September 17, 2018. Filed with Secretary of State September 17, 2018.] LEGISLATIVE COUNSEL'S DIGEST SB 946, Lara. Sidewalk vendors. Existing law authorizes a local authority, by ordinance or resolution, to adopt requirements for the public safety regulating any type of vending and the time, place, and manner of vending from a vehicle upon a street. This bill would prohibit a local authority, as defined, from regulating sidewalk vendors, except in accordance with the provisions of the bill. The bill would provide that a local authority is not required to adopt a new program to regulate sidewalk vendors if the local authority has established an existing program that substantially complies with the provisions of the bill. The bill would apply these provisions to a chartered or general law city, county, or city and county. The bill would require a local authority that elects to adopt a sidewalk vending program to, among other things, not require a sidewalk vendor to operate within specific parts of the public right-of-way, except when that restriction is directly related to objective health, safety, or welfare concerns, and not restrict sidewalk vendors to operate only in a designated neighborhood or area, except as specified. The bill would authorize a local authority to, by ordinance or resolution, adopt additional requirements regulating the time, place, and manner of sidewalk vending, as specified, if the requirements are directly related to objective health, safety, or welfare concerns. The bill would also authorize a local authority to prohibit sidewalk vendors in areas located within the immediate vicinity of a permitted certified farmers' market and a permitted swap meet, as specified, and to restrict or prohibit sidewalk vendors within the immediate vicinity of an area designated for a temporary special permit issued by the local authority, as specified. A violation would be punishable only by an administrative fine, as specified, pursuant to an ability -to -pay determination, and proceeds would be deposited in the treasury of the local authority. The bill would require the dismissal of any criminal prosecutions under any local ordinance or resolution regulating or prohibiting sidewalk vendors that have not reached final judgment. The bill would also authorize a person who is currently serving, or who completed, a sentence, or who is subject to a fine, for a conviction of a misdemeanor or infraction for sidewalk 13-35 2 vending, as specified, to petition for dismissal of the sentence, fine, or conviction. Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. This bill would make legislative findings to that effect. The people of the State of California do enact as follows: SECTION 1. (a) The Legislature finds and declares all of the following: (1) Sidewalk vending provides important entrepreneurship and economic development opportunities to low-income and immigrant communities. (2) Sidewalk vending increases access to desired goods, such as culturally significant food and merchandise. (3) Sidewalk vending contributes to a safe and dynamic public space. (4) The safety and welfare of the general public is promoted by encouraging local authorities to support and properly regulate sidewalk vending. (5) The safety and welfare of the general public is promoted by prohibiting criminal penalties for violations of sidewalk vending ordinances and regulations. (6) This act applies to any city, county, or city and county, including a charter city. The criminalization of small business entrepreneurs, and the challenges that those entrepreneurs face as a result of a criminal record, are matters of statewide concern. Further, unnecessary barriers have been erected blocking aspiring entrepreneurs from accessing the formal economy, harming California's economy in the process, and disrupting the regulation of business, which is a matter of statewide concern. Moreover, California has an interest in the regulation of traffic, a matter of statewide concern, whether in ensuring the appropriate flow of traffic or in ensuring the safety of pedestrians on the road or the sidewalk. (b) It is the intent of the Legislature to promote entrepreneurship and support immigrant and low-income communities. SEC. 2. Chapter 6.2 (commencing with Section 51036) is added to Part 1 of Division 1 of Title 5 of the Government Code, to read: CHAPTER 6.2. SIDEWALK VENDORS 51036. For purposes of this chapter, the following definitions apply: (a) "Sidewalk vendor" means a person 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. (b) "Roaming sidewalk vendor" means a sidewalk vendor who moves from place to place and stops only to complete a transaction. 13-36 (c) "Stationary sidewalk vendor" means a sidewalk vendor who vends from a fixed location. (d) "Local authority" means a chartered or general law city, county, or city and county. 51037. (a) A local authority shall not regulate sidewalk vendors except in accordance with Sections 51038 and 51039. (b) Nothing in this chapter shall be construed to affect the applicability of Part 7 (commencing with Section 113 700) of Division 104 of the Health and Safety Code to a sidewalk vendor who sells food. (c) Nothing in this chapter shall be construed to require a local authority to adopt a new program to regulate sidewalk vendors if the local authority has established an existing program that substantially complies with the requirements in this chapter. 51038. (a) A local authority may adopt a program to regulate sidewalk vendors in compliance with this section. (b) A local authority's sidewalk vending program shall comply with all of the following standards: (1) A local authority shall not require a sidewalk vendor to operate within specific parts of the public right-of-way, except when that restriction is directly related to objective health, safety, or welfare concerns. (2) (A) A local authority shall not prohibit a sidewalk vendor from selling food or merchandise in a park owned or operated by the local authority, except the local authority may prohibit stationary sidewalk vendors from vending in the park only if the operator of the park has signed an agreement for concessions that exclusively permits the sale of food or merchandise by the concessionaire. (B) Notwithstanding subparagraph (A), a local authority may adopt additional requirements regulating the time, place, and manner of sidewalk vending in a park owned or operated by the local authority if the requirements are any of the following: (i) Directly related to objective health, safety, or welfare concerns. (ii) Necessary to ensure the public's use and enjoyment of natural resources and recreational opportunities. (iii) Necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park. (3) A local authority shall not require a sidewalk vendor to first obtain the consent or approval of any nongovernmental entity or individual before he or she can sell food or merchandise. (4) (A) A local authority shall not restrict sidewalk vendors to operate only in a designated neighborhood or area, except when that restriction is directly related to objective health, safety, or welfare concerns. (B) Notwithstanding subparagraph (A), a local authority may prohibit stationary sidewalk vendors in areas that are zoned exclusively residential, but shall not prohibit roaming sidewalk vendors. (5) A local authority shall not restrict the overall number of sidewalk vendors permitted to operate within the jurisdiction of the local authority, 13-37 4 unless the restriction is directly related to objective health, safety, or welfare concerns. (c) A local authority may, by ordinance or resolution, adopt additional requirements regulating the time, place, and manner of sidewalk vending if the requirements are directly related to objective health, safety, or welfare concerns, including, but not limited to, any of the following: (1) 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. (2) Requirements to maintain sanitary conditions. (3) Requirements necessary to ensure compliance with the federal Americans with Disabilities Act of 1990 (Public Law 101-336) and other disability access standards. (4) Requiring the sidewalk vendor to obtain from the local authority a permit for sidewalk vending or a valid business license, provided that the local authority issuing the permit or business license accepts a California driver's license or identification number, an individual taxpayer identification number, or a municipal identification number in lieu of a social security number if the local authority otherwise requires a social security number for the issuance of a permit or business license, and that the number collected shall not be available to the public for inspection, is confidential, and shall not be disclosed except as required to administer the permit or licensure program or comply with a state law or state or federal court order. (5) Requiring the sidewalk vendor to possess a valid California Department of Tax and Fee Administration seller's permit. (6) Requiring additional licenses from other state or local agencies to the extent required by law. (7) Requiring compliance with other generally applicable laws. (8) Requiring a sidewalk vendor to submit information on his or her operations, including, but not limited to, any of the following: (A) The name and current mailing address of the sidewalk vendor. (B) A description of the merchandise offered for sale or exchange. (C) A certification by the vendor that to his or her knowledge and belief, the information contained on the form is true. (D) The California seller's permit number (California Department of Tax and Fee Administration sales tax number), if any, of the sidewalk vendor. (E) If the sidewalk vendor is an agent of an individual, company, partnership, or corporation, the name and business address of the principal. (d) Notwithstanding subdivision (b), a local authority may do both of the following: (1) Prohibit sidewalk vendors in areas located within the immediate vicinity of a permitted certified farmers' market or a permitted swap meet during the limited operating hours of that certified farmers' market or swap meet. A "certified farmers' market" means a location operated in accordance with Chapter 10.5 (commencing with Section 47000) of Division 17 of the 13-38 5 Food and Agricultural Code and any regulations adopted pursuant to that chapter. A "swap meet" means a location operated in accordance with Article 6 (commencing with Section 21660) of Chapter 9 of Division 8 of the Business and Professions Code, and any regulations adopted pursuant to that article. (2) Restrict or prohibit sidewalk vendors within the immediate vicinity of an area designated for a temporary special permit issued by the local authority, provided that any notice, business interruption mitigation, or other rights provided to affected businesses or property owners under the local authority's temporary special permit are also provided to any sidewalk vendors specifically permitted to operate in the area, if applicable. For purposes of this paragraph, a temporary special permit is a permit issued by the local authority for the temporary use of, or encroachment on, the sidewalk or other public area, including, but not limited to, an encroachment permit, special event permit, or temporary event permit, for purposes including, but not limited to, filming, parades, or outdoor concerts. A prohibition of sidewalk vendors pursuant to this paragraph shall only be effective for the limited duration of the temporary special permit. (e) For purposes of this section, perceived community animus or economic competition does not constitute an objective health, safety, or welfare concern. 51039. (a) (1) A violation of a local authority's sidewalk vending program that complies with Section 51038 is punishable only by the following: (A) An administrative fine not exceeding one hundred dollars ($100) for a first violation. (B) An administrative fine not exceeding two hundred dollars ($200) for a second violation within one year of the first violation. (C) An administrative fine not exceeding five hundred dollars ($500) for each additional violation within one year of the first violation. (2) A local authority may rescind a permit issued to a sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations. (3) (A) If a local authority requires a sidewalk vendor to obtain a sidewalk vending permit from the local authority, vending without a sidewalk vending permit may be punishable by the following in lieu of the administrative fines set forth in paragraph (1): (i) An administrative fine not exceeding two hundred fifty dollars ($250) for a first violation. (ii) An administrative fine not exceeding five hundred dollars ($500) for a second violation within one year of the first violation. (iii) An administrative fine not exceeding one thousand dollars ($1,000) for each additional violation within one year of the first violation. (B) Upon proof of a valid permit issued by the local authority, the administrative fines set forth in this paragraph shall be reduced to the administrative fines set forth in paragraph (1), respectively. (b) The proceeds of an administrative fine assessed pursuant to subdivision (a) shall be deposited in the treasury of the local authority. 13-39 6 (c) Failure to pay an administrative fine pursuant to subdivision (a) shall not be punishable as an infraction or misdemeanor. Additional fines, fees, assessments, or any other financial conditions beyond those authorized in subdivision (a) shall not be assessed. (d) (1) A violation of a local authority's sidewalk vending program that complies with Section 51038, or a violation of any rules or regulations adopted prior to January 1, 2019, that regulate or prohibit sidewalk vendors in the jurisdiction of a local authority, shall not be punishable as an infraction or misdemeanor, and the person alleged to have violated any of those provisions shall not be subject to arrest except when permitted under law. (2) Notwithstanding any other law, paragraph (1) shall apply to all pending criminal prosecutions under any local ordinance or resolution regulating or prohibiting sidewalk vendors. Any of those criminal prosecutions that have not reached final judgment shall be dismissed. (e) A local authority that has not adopted rules or regulations by ordinance or resolution that comply with Section 51037 shall not cite, fine, or prosecute a sidewalk vendor for a violation of any rule or regulation that is inconsistent with the standards described in subdivision (b) Section 51038. (f) (1) When assessing an administrative fine pursuant to subdivision (a), the adjudicator shall take into consideration the person's ability to pay the fine. The local authority shall provide the person with notice of his or her right to request an ability -to -pay determination and shall make available instructions or other materials for requesting an ability -to -pay determination. The person may request an ability -to -pay determination at adjudication or while the judgment remains unpaid, including when a case is delinquent or has been referred to a comprehensive collection program. (2) If the person meets the criteria described in subdivision (a) or (b) of Section 68632, the local authority shall accept, in full satisfaction, 20 percent of the administrative fine imposed pursuant to subdivision (a). (3) The local authority may allow the person to complete community service in lieu of paying the total administrative fine, may waive the administrative fine, or may offer an alternative disposition. (g) (1) A person who is currently serving, or who completed, a sentence, or who is subject to a fine, for a conviction of a misdemeanor or infraction for sidewalk vending, whether by trial or by open or negotiated plea, who would not have been guilty of that offense under the act that added this section had that act been in effect at the time of the offense, may petition for dismissal of the sentence, fine, or conviction before the trial court that entered the judgment of conviction in his or her case. (2) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to dismiss the sentence or fine, if applicable, and dismiss and seal the conviction, because the sentence, fine, and conviction are legally invalid. 13-40 (3) Unless requested by the petitioner, no hearing is necessary to grant or deny a petition filed under paragraph (1). (4) If the court that originally sentenced or imposed a fine on the petitioner is not available, the presiding judge shall designate another judge to rule on the petition. (5) Nothing in this subdivision is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner. (6) Nothing in this subdivision or related provisions is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this chapter. SEC. 3. The Legislature finds and declares that Section 2 of this act, which adds Section 51038 to the Government Code, imposes a limitation on the public's right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest: The Legislature finds and declares that in order to protect the privacy of a sidewalk vendor with regard to his or her California driver's license or identification number, individual taxpayer identification number, or municipal identification number, when that number is collected in lieu of a social security number for purposes of the issuance of a permit or business license, it is necessary that the sidewalk vendor's number be confidential, except as provided in this act. U 13-41 Attachment C Sidewalk Vendor Checklist 13-42 oW�Qe CITY OF NEWPORT BEACH c"41FORNP SIDEWALK VENDING PROGRAM CHECKLIST UNDERSTANDING , SIDEWALK VENDING • No person, either for himself/herself or any other person, shall engage in any sidewalk vendor activities within the City without first applying for and receiving a permit from the City. • The primary use of a sidewalk is for pedestrians. Vendors shall not unduly interfere with traffic or pedestrian movement. • A sidewalk vendor permit is non -transferable. • All permits issued shall expire 12 months from date of issuance. • Hours Allowed: Non -Residential areas: 7:00 a.m. — 10:00 p.m. Residential areas: 8:00 a.m. — 9:00 p.m. No stationary vendors allowed in residential areas • All vendors must ensure compliance with the requirements outlined in City Municipal Code Chapter 5.97 — Sidewalk Vending Program. 01-�0' CONTACTS �' California Department of Tax & Fee Administration (CDFTA) 16715 Von Karman Ave., #200 Irvine, CA 92606 949-440-3473 Orange County Health Care Agency Department 1241 E. Dyer Rd., #120 Santa Ana, CA 92705 714-433-6000 Orange County Clerk -Recorder Office 12 Civic Center Plaza, Room 106 Santa Ana, CA 92701 714-834-2500 GETTING STARTED! IMPORTANT RESPONSIBILITES CHECKLIST PRIOR TO FILING AN APPLICATION FOR A SIDEWALK VENDING PERMIT, YOU MUST DO THE FOLLOWING: ❑ Review the City Municipal Code Chapter 5.97 — Sidewalk Vending Program. ❑ Apply for and obtain a valid California Department of Tax and Fee Administration (CDTFA) seller's permit indicating a Newport Beach location or sub -location. ❑ Apply for and obtain a health permit from the Orange County Health Care Agency if selling food. ❑ Choose and file a Fictitious Business Name Statement with the Orange County Clerk -Recorder's Office if you will be using any name other than your given name, the name(s) of your partner(s), or the officially registered name of your LLC or Corporation. ❑ Provide proof of prior sales tax allocation to the City (for renewals). ONCE YOU HAVE CHECKED ALL OF THE ABOVE, YOU MAY: Apply for a City permit thirty (30) days prior to engaging in any vending on public right-of-way and pay the appropriate fees. Application may be filed by mail or in person at: City of Newport Beach -Revenue Division 100 Civic Center Drive Newport Beach, CA 92660 949-644-3141 13-43 Attachment D List of Passive and Active Parks 13-44 EXHIBIT A PARK DEDICATION POLICY IrJ.111t4--4011 The following view parks serve as citywide resources by reason of their unusual beauty and the view provided: Back Bay View Park Bayview Park Begonia Park Channel Place Park Civic Center Park Cliff Drive Park Corona del Mar State Beach Park John Wayne Park Galaxy View Park Inspiration Point Irvine Terrace Park Los Trancos (lower, middle, upper) Canyon Watch Harbor Watch Castaways Park Jasmine View Park Kings Road Park Lido Park Lookout Point Newport Island Park Peninsula Park Rhine Wharf Park Sunset View Park West Jetty View Park Westcliff Park 13-45 The following Community and Neighborhood Parks serve as citywide resources by reason of the unique recreational opportunities they offer: Arroyo Park - Lighted multi-purpose field, basketball court, picnic areas and playground. Bonita Canyon Sports Park - Four youth baseball fields, one multi-purpose field, one soccer field, tennis courts, pickleball courts, basketball court, 2 playgrounds and connecting trail to Arroyo Park. Bonita Creek Park - Community center, playground, lighted multi-purpose fields, and basketball court. Buck Gully- hiking trails Buffalo Hills Park - Basketball court, baseball/ softball diamond, volleyball court, multi-purpose fields. Carroll Beek Community Center and Balboa Island Park - Basketball court, tot playground and community center. Civic Center Park - Scenic view, dog park, art sculptures, cactus garden, Civic green, and walking trails and community room. Coastal Peak Park - Two multi-purpose fields, playground, two picnic pavilions and basketball court. Community Youth Center/Grant Howald Park - Basketball court, tennis courts, playground, community center, softball and multi-purpose field. Eastbluff Park - Baseball diamond, multi-purpose field, playground, and view of the Back Bay. Harbor View Nature Park - Natural vegetation area. Lincoln Athletic Center - Gymnasium, lighted baseball/ softball diamond and multi-purpose fields. Marina Park - Community center, sailing center, picnic area, playground, basketball courts and fitness course. 13-46 Mariners Park - Multi-purpose room, baseball/ softball facilities, racquetball courts, lighted tennis courts, multi-purpose fields, and an ADA equipped play area. Newport Coast Community Center - Gymnasium, multi-purpose facility with classrooms OASIS Senior Center - Multi-purpose senior facility with classrooms, large multi- purpose room, and fitness center. Peninsula Park - Beach sited multi-purpose field, playground (ADA compliant), picnic and barbecue facilities, baseball/ softball diamond and gazebo. San Joaquin Hills Park - Tennis courts, pentanque courts, lawn bowling facility. San Miguel Park - Ball diamond, athletic field, four racquetball courts, basketball court and an ADA equipped play area. Sunset Ridge Park - Baseball field, soccer fields, butterfly garden, scenic view and playground. Theater Arts Center - Ninety seat community theater. West Newport Community Center- Gymnasium West Newport Park - Tennis courts, racquetball courts, basketball court, and 3 playgrounds. 38th Street Park - Basketball courts and playground (ADA compliant). Big Canyon Nature Park - hiking trails Bob Henry Park - Multipurpose field, ball diamond, playground, picnic areas Newport Aquatic Center - rowing, canoeing, kayaking, paddle boarding facility North Start Beach - aquatic center Spyglass Hill Park - playground, picnic area 16th Street Community Center - multipurpose facility with classroom 13-47