HomeMy WebLinkAbout06 - Creating a Program to Regulate and Permit Sidewalk Vending Pursuant to California Senate Bill 946PORT CITY OF
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_ i NEWPORT BEACH
City Council Staff Report
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November 27, 2018
Agenda Item No. 6
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Benjamin M. Zdeba, AICP, Associate Planner
PHONE: 949-644-3253
TITLE: Second Reading and Adoption of Ordinance No. 2018-19 — Creating
a Program to Regulate and Permit Sidewalk Vending Pursuant to
California Senate Bill 946
ABSTRACT:
Ordinance No. 2018-19 was introduced and considered at the November 13, 2018 City
Council meeting. It creates a new Newport Beach Municipal Code (NBMC) Chapter 5.97
(Sidewalk Vending Program), which establishes a permitting program and regulations
consistent with Senate Bill (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) Conduct second reading and adopt 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.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item. There may be indirect costs associated with
additional enforcement.
DISCUSSION:
Senate Bill 946 establishes statewide governance of vending in the public right-of-way
and on public parks. Portions of the 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.
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Second Reading and Adoption of Ordinance No. 2018-19 — Creating a Program to
Regulate and Permit Sidewalk Vending Pursuant to California Senate Bill 946
November 27, 2018
Page 2
In order to ensure the City can properly regulate sidewalk vendors by the effective date
of SB 946, the NBMC must be amended prior to January 1, 2019. The attached ordinance
creates a new NBMC Chapter 5.97, Sidewalk Vending Program, establishing a permitting
program and regulations consistent with Senate Bill (SB) 946.
At the November 13, 2018 City Council meeting, Ordinance No. 2018-19 was introduced.
Council unanimously voted to pass the Ordinance to second reading with changes to
distinguish the Balboa Island Boardwalk from the Oceanfront Boardwalk. Those changes
have been incorporated in Attachment A.
ENVIRONMENTAL REVIEW:
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:
The 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).
ATTACHMENT:
Attachment A — Ordinance No. 2018-19
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Attachment A
Ordinance No. 2018-19
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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.
Ordinance No. 2018-19
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
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Ordinance No. 2018-19
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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 Boardwalk 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 Boardwalk's popularity as a tourist destination;
2. The Oceanfront 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
Oceanfront 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
Ordinance No. 2018-19
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 Boardwalk" 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. "Oceanfront Boardwalk" means the concrete walkway approximately
twelve (12) to twenty-two (22) feet in width immediately adjacent to the
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Ordinance No. 2018-19
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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 Oceanfront 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
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Ordinance No. 2018-19
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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
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Ordinance No. 2018-19
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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 -
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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;
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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
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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;
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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.
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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;
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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. 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. 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
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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. 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;
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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 Oceanfront Boardwalk, including any portion of paved path
extending from the Oceanfront Boardwalk into the beach;
2. The Balboa Island Boardwalk;
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;
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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;
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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
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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
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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(B) 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;
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5. All appeals of administrative citations shall be conducted in
accordance with Section 1.05.080 of this Code, or any successor section,-
6.
ection;
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
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section, and the Hearing Officer may be disqualified as provided in Section
1.05.070(8), 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
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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(B)
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.
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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 13th day of November, 2018, and adopted on the 27th day
of November, 2018, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
MARSHALL "DUFFY" DUFFIELD, MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
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Ordinance No. 2018-19
Page 24 of 24
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
AAMON C. HARP, CITY ATTORNEY
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