HomeMy WebLinkAbout11 - PH-2 - Introduction of an Ordinance of the CC - 10/15/20191
CITY COUNCIL AGENDA REPORT
MEETING DATE: OCTOBER 15, 2019 ITEM NUMBER: PH-2
SUBJECT: INTRODUCTION OF AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF COSTA MESA AMENDING SECTIONS 9-125 (BUSINESSES,
PROFESSIONS, TRADES AND OCCUPATIONS REQUIRING A PERMIT
UNDER THE PROVISIONS OF THIS CHAPTER) AND 9-128
(BUSINESSES WHERE THE DIRECTOR OF FINANCE MAY ISSUE
PERMITS IN CASE OF NO OBJECTION) OF ARTICLE 1 (GENERALLY)
AND ARTICLE 9 (PUSHCART AND OTHER SIDEWALK VENDORS), OF
CHAPTER II (REGULATION OF CERTAIN BUSINESSES) OF TITLE 9
(LICENSES AND BUSINESS REGULATION) OF THE COSTA MESA
MUNICIPAL CODE, RELATING TO SIDEWALK VENDING
DATE: OCTOBER 7, 2019
FROM: FINANCE DEPARTMENT/CITY ATTORNEY’S OFFICE
PRESENTATION
BY:
TARQUIN PREZIOSI, ASSITANT CITY ATTORNEY
FOR FURTHER INFORMATION
CONTACT:
JENNIFER KING, ASSISTANT FINANCE
DIRECTOR, (714) 754-5219
RECOMMENDATION:
Staff recommends that the City Council:
1. Find that the adoption of this Ordinance is not a “project” under the California
Environmental Quality Act (CEQA) pursuant to Public Resources Code Section
21065, and that it is exempt from the provisions of CEQA pursuant to CEQA
Guidelines (14 Cal. Code. Regs. § 15000, et seq.) Section 15061(b)(3) (because
it can be seen with certainty that the adoption of this Ordinance will not have an
effect on the environment) such that no environmental review under CEQA is
required.
2. Introduce for first reading, by title only, proposed Ordinance No. 19-xx amending
Sections 9-125 (Businesses, Professions, Trades and Occupations Requiring a
Permit Under the Provisions of this Chapter) and 9-128 (Businesses Where the
Director of Finance May Issue Permits in Case of No Objection) of Article 1
(Generally) and the provisions of Article 9 (Pushcart and Other Sidewalk Vendors)
of Chapter II (Regulation of Certain Businesses) of Title 9 (Licenses and Business
Regulation) of the Costa Mesa Municipal Code, relating to Sidewalk Vending.
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BACKGROUND:
Effective January 1, 2019, Senate Bill 946 (“SB 946”) adds Chapter 6.2 to the portion of
the Government Code applicable to the government of cities and counties. By its own
terms, it applies to both general law and charter cities1 and defines a “sidewalk vendor”
as someone who “sells food or merchandise,” on a sidewalk or pedestrian path, with or
without a pushcart, stand or other conveyance.2 It prohibits3 local agencies from
regulating sidewalk vendors except in accordance with Government Code Sections
51038 and 51039, and provides that existing ordinances regulating sidewalk vendors
remain valid so long as they substantially comply with SB 946.4
According to its authors, SB 946 was intended to increase economic opportunities to low-
income and immigrant communities, increase access to culturally significant food and
merchandise. To contribute to safe and dynamic public spaces, SB 946 limits local
authority to regulate sidewalk vendors. Any local regulations on sidewalk vendors must
comply with newly enacted state laws that generally limit local authority to impose
regulations that are directly related to “objective health, safety or welfare concerns.” SB
946 also limits penalties for violating local regulations to administrative fines, but does
allow cities to enact a permitting scheme and prohibit sidewalk vending near farmer’s
markets, swap meets, and other events.
If a local agency adopts sidewalk vendor regulations, these regulations must comply with
the following standards:
The regulations cannot require the sidewalk vendor to only operate within specific
parts of the public right of way except when the restriction is directly related to
objective health, safety or welfare concerns.5
The regulations cannot prohibit sidewalk vendors from operating in a public park, but
the regulations can prohibit stationary sidewalk vending where the city already has an
agreement with a third party for exclusive concessions inside the park. A city can also
adopt reasonable time, manner and place restrictions inside public parks if the
restrictions are directly related to objective health, safety or welfare concerns, when
necessary to ensure the public’s use and enjoyment of the park, or necessary to
prevent an undue concentration of commercial activity that unreasonably interferes
with the character of the park. 6
The regulations cannot require a sidewalk vendor to obtain the approval of a non-
governmental entity before selling food or merchandise.7
The regulations cannot restrict sidewalk vendors to operate only in designated
neighborhoods except when the restriction is directly related to objective health, safety
or welfare concerns. Cities can prohibit stationary sidewalk vendors from operating in
residential zones, but cannot prohibit roaming sidewalk vendors.8
1 Cal. Gov. Code § 51036(d).
2 Cal. Gov. Code § 51036(a).
3 Cal. Gov. Code § 51037(a).
4 Cal. Gov. Code § 51037(c).
5 Cal. Gov. Code § 51038(b)(1).
6 Cal. Gov. Code § 51038(b)(2).
7 Cal. Gov. Code § 51038(b)(3).
8 Cal. Gov. Code § 51038(b)(4).
3
The regulations cannot restrict the overall number of sidewalk vendors permitted to
operate within a jurisdiction, unless the restriction is directly related to objective health,
safety or welfare concerns.9
The regulations can limit the hours of operation for sidewalk vendors so long as they
are not unduly restrictive. In commercial areas, these restrictions cannot be more
restrictive than any limitations on other businesses on the same street.10
The regulations can impose sanitary conditions and requirements to comply with
disabled access standards.11
The regulations can require sidewalk vendors to obtain a permit or business license,
so long as the regulations do not require a social security number from the perspective
permittee.12
The regulations can require sidewalk vendors to submit information to the city
regarding their operations, including a mailing address, a description of merchandise,
and other information.13
The regulations can prohibit sidewalk vendors from operating near farmers’ markets,
swap meets, and other events subject to a special permit.14
SB 946 makes clear that perceived community animus and economic competition do not
constitute objective health, safety or welfare concerns.15 The new law also limits penalties
for violating local regulations on sidewalk vendors to administrative citations, the amounts
of which range from $100-$500 for most violations and fines ranging from $250-$1,000
for vending without a permit.16 Criminal penalties and arrest are not available to cities as
enforcement tools.17 Finally, cities are required to give notice to a cited individual that
he/she has the right to request an ability-to-pay determination before the administrative
fine adjudicator.18
ANALYSIS:
Article 9 of Chapter II of Title 9 of the CMMC (Section 9-191 et seq.) generally prohibits
sidewalk vendors in most areas of the City. As such, the current regulations as applied to
public property do not “substantially comply” with SB 946. The proposed ordinance repeals
and replaces Article 9. Under the proposed ordinance, sidewalk vendors, as defined, are
required to obtain both a regular City business license and a Sidewalk Vendor Permit
(“Permit”) from the Finance Director. The fee for the Permit is to be established by resolution
of the City Council. The specific requirements for issuance of the Permit are set forth in
Sections 9-191.2 and 191.3. Significant requirements include an agreement to defend,
indemnify and hold the City harmless from any liability for damages to persons or property
that might result the sidewalk vendor’s activities in the public rights of way; and maintaining
liability insurance of not less than $1,000,000.00 that names the City as an additional
insured. Liability insurance and/or indemnity agreements are commonly required under the
CMMC for various permitted activities in the public rights of way, including special events,19
9 Cal. Gov. Code § 51038(b)(5).
10 Cal. Gov. Code § 51038(c)(1).
11 Cal. Gov. Code § 51038(c)(2)-(3).
12 Cal. Gov. Code § 51038(c)(4).
13 Cal. Gov. Code § 51038(c)(8).
14 Cal. Gov. Code § 51038(d).
15 Cal. Gov. Code § 51038(e).
16 Cal. Gov. Code § 51039(a).
17 Cal. Gov. Code § 51039(d).
18 Cal. Gov. Code § 51039(f).
19 Section 9-208.10
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filming,20 construction work,21 placement of vending machines,22 block parties,23 and similar
activities.
The detailed operational requirements for sidewalk vendors are set forth in Section 9-191.4.
These requirements are designed to maintain safe access to all persons using the public
right of way, to minimize impacts related to noise, trash and visual distractions, and to ensure
that sidewalk vending receptacles are attended at all time. Certain activities set forth in
Section 9-191.5 subsection (c) are specifically prohibited; these include disruptive behavior,
interfering with sporting events at park, and other activities that affect the public’s safe use,
passage and enjoyment of City parks and rights of way. Hours of operation citywide are
limited to 7 a.m. and 11:00 p.m. daily, unless the sidewalk vendor is operating within five
hundred (500) feet of another business open to the public that is legally operating during
those hours, in which case sidewalk vendors may operate during the hours in which the
adjacent business is legally open to the public. In residentially zoned areas, the hours of
operation are between 9:00 a.m. and 5:00 p.m. daily, and are limited to mobile sidewalk
vendors only. For parks, sidewalk vending is limited to the hours when parks are open,
which is generally from dawn to dusk.
Specific locational restrictions are included in Section 9-191.5 subsection (d). These (as
well as the general operational and activity restrictions elsewhere in the ordinance) are
directly related to the objective health, safety and/or welfare concerns related to the
interference with the flow of pedestrian or vehicular traffic, including ingress into or from,
residences, businesses, or public buildings, or from the street to the sidewalk, by persons
exiting or entering parked or standing vehicles; allowing for the effective performance of
police, firefighter and emergency medical personnel services in the public right of way;
ensuring that sidewalk vending activities occur only in locations where such activities
would not restrict the use and enjoyment of sidewalks and pathways by persons with
disabilities; providing for reasonable access to the use and maintenance of sidewalks,
pathways, poles, posts, traffic signs or signals, hydrants, firefighting apparatus,
mailboxes, as well as access to locations used for public transportation services;
maximizing public access to all of the City’s natural resources; and reducing injuries in
and exposure to the City for personal injury or property damage claims and litigation that
may be caused in whole or in part by the activities of sidewalk vending in the public right
of way.
In addition, restrictions against vending at the Civic Center, which contains the City’s
emergency operation center, the headquarters for the Police Department, Fire
Department and other critical infrastructure, are necessary to ensure that police and fire
equipment and personnel are easily accessible and critical infrastructure is maintained
and accessible at all times. Restrictions on sidewalk vending at and around other capital
facilities are also necessary to ensure that these facilities are easily accessible to City
personnel, vehicles and equipment. Restrictions against vending within Fairview Park
(unless approved pursuant to a special events permit) are also included; Fairview Park
provides unique passive recreational opportunities and experiences. Use of these
resources would be impeded by the operation of sidewalk vendors within the park. In
addition, Fairview Park lacks hardscape or other paved areas suitable for sidewalk
vending, such that such restrictions are necessary to protect the natural resources and
20 Section 9-479
21 Section 15-17.1
22 Section 11-105
23 Section 9-208.19
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recreational opportunities, as well as scenic and natural character of this park. Many of
the City’s other parks are heavily used for active sporting and recreational activities, such
that restrictions on specified behavior of sidewalk vendors are necessary to protect the
health, safety and welfare of persons engaged in active sports and/or recreational
activities as well as spectators of sporting activities. Many of the sidewalks and pathways
in the City are under eight feet wide and stationary sidewalk vending in these areas would
unreasonably interfere with the flow of pedestrians and disrupt access for persons with
disabilities. Finally, sidewalks immediately adjacent of the Orange County Fairgrounds
become heavily impacted when the Orange County Fair and related events are operating,
such that restrictions thereon are necessary to protect the health, safety and welfare of
persons attending the Fairgrounds and utilizing those sidewalks.
The penalty provisions of Section 9-191.6 and appeal provisions of 9-191.7 utilize the
City’s existing civil citation procedure, as modified to conform to the requirements of SB
946. Appeals of the decision of the Finance Director to deny, rescind and/or revoke a
permit are subject to the existing procedures of Section 9-121.
In addition to the amendments to Article 9 of Chapter II of Title 9, the proposed Ordinance
also makes conforming changes to Sections 9-125 and 9-128 of Article 1 of Chapter II of
Title 9 as follows:
9-125. Businesses, professions, trades and occupations requiring a permit under
the provisions of this chapter.
(p) Sidewalk sales and parking lot sales. The terms sidewalk sales and parking lot
sales shall mean the sale of merchandise from a retail establishment located in a
permanent structure directly adjacent to the sidewalk or parking lot used for the sale and
does not include pushcart vending prohibited by section 9-191.
(r) Sidewalk vending.
9-128. Business where the director of finance may issue permits in case of no
objection.
(i) Sidewalk sales and parking lot sales. The term sidewalk sales and parking lot sales
shall mean the sale of merchandise from a retail establishment located in a permanent
structure directly adjacent to the sidewalk or parking lot used for the salesale and does
not include pushcart vending prohibited by section 9-191.
(j) Sidewalk vending.
ALTERNATIVES CONSIDERED:
The City Council could decide not to substantively regulate sidewalk vendors at all, other
than to require a regular business license. In that case, the Council may consider repealing
the existing prohibitions in Article 9 of Chapter II of Title 9 that conflict with SB 946. In
addition, the City Council could propose different or additional requirements for sidewalk
vending that are consistent with the requirements of SB 946.
FISCAL REVIEW:
The proposed Ordinance allows the City to regulate sidewalk vending activity in accordance
with State laws. Subject to the City Council’s introduction and first reading of Ordinance No.
19-xx, staff will return to the City Council for adoption of a resolution establishing the
proposed sidewalk vendor permit fees at full cost recovery.
6
LEGAL REVIEW:
The City Attorney’s Office has reviewed and approved this report and has prepared the
attached Ordinance.
CITY COUNCIL GOALS & PRIORITIES:
This item is administrative in nature.
CONCLUSION:
Staff recommends the City Council, by separate motions:
1. Find that that adoption of this Ordinance is not a “project” under the California
Environmental Quality Act (CEQA) pursuant to Public Resources Code Section
21065, and that each is exempt from the provisions of CEQA pursuant to CEQA
Guidelines (14 Cal. Code. Regs. § 15000, et seq.) Section 15061(b)(3) (because
it can be seen with certainty that the adoption of this Ordinance will not have an
effect on the environment) such that no environmental review under CEQA is
required.
2. Introduce for first reading, by title only, Ordinance No. 19-xx amending Sections
9-125 (Businesses, Professions, Trades and Occupations Requiring a Permit
Under the Provisions of this Chapter) and 9-128 (Businesses Where the Director
of Finance May Issue Permits in Case of No Objection) of Article 1 (Generally)
and the provisions of Article 9 (Pushcart and Other Sidewalk Vendors), of Chapter
II (Regulation of Certain Businesses) of Title 9 (Licenses and Business
Regulation) of the Costa Mesa Municipal Code, relating to Sidewalk Vending
(attachment 1).
JENNIFER KING, CPA KELLY A. TELFORD, CPA
Assistant Finance Director Finance Director
KIMBERLY HALL BARLOW
City Attorney
ATTACHMENT: 1.
2.
Proposed Ordinance No. 19-XX
CMMC Title 9 Chapter II Article 9 (current)
7
ORDINANCE NO. 19-XX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA
MESA AMENDING SECTIONS 9-125 (BUSINESSES, PROFESSIONS,
TRADES AND OCCUPATIONS REQUIRING A PERMIT UNDER THE
PROVISIONS OF THIS CHAPTER) AND 9-128 (BUSINESSES WHERE
THE DIRECTOR OF FINANCE MAY ISSUE PERMITS IN CASE O F NO
OBJECTION) OF ARTICLE 1 (GENERALLY) AND THE PROVISIONS OF
ARTICLE 9 (PUSHCART AND OTHER SIDEWALK VENDORS) OF
CHAPTER II (REGULATION OF CERTAIN BUSINESSES) OF TITLE 9
(LICENSES AND BUSINESS REGULATION) OF THE COSTA MESA
MUNICIPAL CODE, RELATING TO SIDEWALK VENDING
WHEREAS, the City of Costa Mesa, pursuant to its police power, may enact
regulations for the public peace, morals, and welfare of the City; and
WHEREAS, the City of Costa Mesa desires to amend the provisions of the Costa
Mesa Municipal Code to impose regulations related to health, safety and welfare; and
WHEREAS, the City of Costa Mesa desires to establish a permitting and regulatory
program for sidewalk vendors that complies with Senate Bill 946 (Chapter 459, Statutes
2018) that both encourages certain small business activities and that protects the public
health, safety and welfare; and
WHEREAS, the City Council of the City of Costa Mesa hereby finds that to promote
and protect the public health, safety and welfare, restrictions on sidewalk vending set forth
in this Ordinance are necessary to:
1. Ensure no unreasonable interference with the flow of pedestrian or vehicular traffic,
including ingress into or from, residences, businesses, or public buildings, or from
the street to the sidewalk, by persons exiting or entering parked or standing
vehicles;
2. Allow for the effective performance of police, firefighter and emergency medical
personnel services in the public right-of-way;
3. Ensure that sidewalk vending activities occur only in locations where such activities
would not restrict the use and enjoyment of sidewalks and pathways by persons
with disabilities;
4. Provide reasonable access to the use and maintenance of sidewalks, pathways,
poles, posts, traffic signs or signals, hydrants, firefighting apparatus, mailboxes, as
well as access to locations used for public transportation services;
5. Maximize public access to all of the City’s natural resources; and
6. Reduce exposure to the City for personal injury or property damage claims and
litigation that may be caused in whole or in part by the activities of sidewalk vending
in the public right-of-way.
WHEREAS, the City Council of the City of Costa Mesa hereby finds that the unique
characteristics of the City require certain restrictions on sidewalk vending at certain
locations as follows:
1. The Civic Center contains the City’s emergency operation center, the headquarters
for the Police Department, Fire Department and other critical infrastructure, and
restrictions on sidewalk vending are necessary to ensure that police and fire
equipment and personnel are easily accessible and critical infrastructure is
maintained and accessible at all times;
2. Restrictions on sidewalk vending at and around other capital facilities are also
necessary to ensure that these facilities are easily accessible to City personnel,
vehicles and equipment;
3. Fairview Park provides unique passive recreational opportunities and experiences,
which unique characteristics as natural open space have been determined by the
electorate of the City as now set forth in Chapter V of Title 12 of the Costa Mesa
Municipal Code, and lacks hardscape or other paved areas suited for sidewalk
vending, such that restrictions on sidewalk vending therein are necessary to
protect the natural resources and recreational opportunities, as well as scenic and
natural character of this park;
4. Many of the City’s other parks are heavily used for active sporting and recreational
activities, such that restrictions on sidewalk vending at active parks are also
necessary to protect the health, safety and welfare of persons engaged in active
sports and/or recreational activities as well as spectators of sporting activities;
5. Many of the sidewalks and pathways in the City are under eight (8) feet wide and
stationery sidewalk vending in these areas would unreasonably interfere with the
flow of pedestrians and disrupt access for persons with disabilities;
6. Sidewalks immediately adjacent to the Orange County Fairgrounds become
heavily impacted when the Orange County Fair and other events are operating,
such that restrictions thereon are necessary to protect the health, safety and
welfare of persons attending the Fairgrounds and utilizing those sidewalks; and
7. From time to time the City, public utilities, other authorized entities and/or persons
engaging in permitted work thereon close or restrict access to and on portions of
public sidewalks, pathways and other areas, such that restrictions against sidewalk
vending in those areas so posted are necessary to protect the health, safety and
welfare of persons in the immediate area.
WHEREAS, the City of Costa Mesa, pursuant to the provisions of the California
Environmental Quality Act (“CEQA”) (California Public Resources Code Sect ions 21000
et seq.) and State CEQA guidelines (Sections 15000 et seq.) has determined that the
ordinance is not a "project" and further, that it is exempt from the provisions of CEQA
pursuant to CEAQ Guidelines Section 15061(b)(3) (because it can be seen with certainty
that the adoption of this Ordinance will not have an effect on the environment) such that
no environmental review under CEQA is required; and
WHEREAS, all legal prerequisites prior to the adoption of this Ordinance have
occurred.
NOW, THEREFORE, THE COSTA MESA CITY COUNCIL DOES HEREBY
ORDAIN AS FOLLOWS:
Section 1. Sections 9-125 (Businesses, professions, trades and occupations
requiring a permit under the provisions of this chapter) and 9-128 (Businesses where the
director of finance may issue permits in case of no objection) of Article 1 (Generally) of
Chapter II (Regulation of Certain Businesses) of Title 9 (Licenses and Business
Regulation) of the Costa Mesa Municipal Code are hereby amended as follows:
9-125. Businesses, professions, trades and occupations requiring a permit under
the provisions of this chapter.
(p) Sidewalk sales and parking lot sales. The terms sidewalk sales and parking lot
sales shall mean the sale of merchandise from a retail establishment located in a
permanent structure directly adjacent to the sidewalk or parking lot used for the
sale.
(r) Sidewalk vending.
9-128. Business where the director of finance may issue permits in case of no
objection.
(i) Sidewalk sales and parking lot sales. The term sidewalk sales and parking lot sales
shall mean the sale of merchandise from a retail establishment located in a
permanent structure directly adjacent to the sidewalk or parking lot used for the
sale.
(j) Sidewalk vending.
Section 2. Article 9 (Pushcart and Other Sidewalk Vendors) of Chapter II
(Regulation of Certain Businesses) of Title 9 (Licenses and Business Regulation) of the
Costa Mesa Municipal Code is hereby amended in its entirety to read as follows:
9-191. Purpose
The purpose of this article is to establish a permitting and regulatory program for sidewalk
vendors that complies with Senate Bill 946 (Chapter 459, Statutes 2018), that encourages
certain small business activities and protects the public health, safety and welfare.
9-191.1 Definitions.
Unless defined in this article, this title or elsewhere in this Code, the words used in this
article shall have the same definitions ascribed to them in Chapter 6.2 of Part 1 of Division
1 of Title 5 of the Government Code. Any reference to California statutes includes any
regulations promulgated thereunder and is deemed to include any successor or amended
version of the referenced statute.
(a) “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;
(b) “Capital facility” means a facility set forth in section 2-208;
(c) “Fire station” means any facility where fire engines and other equipment of the
city’s fire department are housed;
(d) “Food” means any item provided in Health & Safety Code section 113781;
(e) “Health Department” and/or “OCHCA” means the County of Orange Health Care
Agency or any successor agency thereto as defined in Chapter II of Title 8 of this
Code;
(f) “Health permit” means a permit issues by the Health Department;
(g) “Hearing officer” means the person appointed to conduct administrative reviews of
civil citations pursuant to section 1-35;
(h) “Heating element” means any device used to create heat for food preparation
and/or sale;
(i) “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;
(j) “Park” shall have the same meaning as defined Title 12 of this Code;
(k) “Pathway” means a paved path or paved walkway owned by the city or other public
entity that is specifically designed for pedestrian travel, other than a sidewalk;
(l) “Permit” means a sidewalk vendor permit issued pursuant to this article;
(m) “Person” shall have the same meaning as defined in Title 1 of this Code;
(n) “Police station” means any facility where police vehicles and other equipment of
the city’s police department are housed;
(o) “Public property” means all property owned or controlled by the city, including, but
not limited to, buildings, alleys, boardwalks, parks, pathways, bike paths, streets,
public rights-of-way, parking lots, sidewalks, and walking trails;
(p) “Residential” means any area zoned or developed for residential use pursuant to
Title 13 of this Code;
(q) “Roaming sidewalk vendor” means a sidewalk vendor who moves from place to
place and stops only to complete a transaction;
(r) “Sidewalk” means that portion of a highway, other than the roadway, set apart by
curbs, barriers, markings or other delineation specifically designed for pedestrian
and/or pedestrian and bicycle travel that is paved and owned by the city or other
public entity;
(s) “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;
(t) “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, and includes both stationary and roaming sidewalk vendors;
(u) “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;
(v) “Special event” shall have the same meaning as defined in section 9-205;
(w) “Stationary sidewalk vendor” means a sidewalk vendor who vends from a fixed
location; and
(x) “Swap meet” means a location operated in accordance with Article 6 (commencing
with section 21660) of Chapter 9 of Division 8 of the Business & Professions Code,
and any regulations adopted pursuant to that chapter.
9-191.2 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 director of finance, or the director of finance’s designee, under this article.
(b) A written application for a sidewalk vendor permit shall be filed with the director of
finance, on a form provided by the city, and shall contain the following information:
1. The name, age, 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;
12. A copy of the health permit required for any sidewalk vendors selling food, as
required by Chapter II of Title 8 of this Code;
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 sublocation,
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 attorneys ’ 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 pub lic 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
their own risk;
18. An acknowledgement that the sidewalk vendor will obtain and maintain throughout
the duration of any permit issued under this article any insurance and endorsement
therefore required by this article;
19. Any other relevant information required by the director of finance, or the director of
finance’s designee.
(c) Each application for a sidewalk vendor permit shall be accompanied by a
nonrefundable application fee as established by resolution of the city council. The
application and any permit issued therefor are only applicable to the individual(s)
named on the application.
(d) Business license required. No person, either for themselves or any other person,
shall engage in any sidewalk vendor activities within the city without first obtaining
and thereafter maintaining a business license pursuant to Article 5 of this title.
9-191.3 Issuance of Permit.
(a) Within thirty (30) calendar days of receiving a complete application, the director of
finance acting as the issuing officer 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;
5. The sidewalk vendor has paid all previous administrative fines connected in any
way with a previous violation of this article;
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 informat ion;
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 provides a policy of liability insurance in a form and with
companies approved by the city and approved to do business in California, which
policy names the City of Costa Mesa, its officers, employees and agents as
additional insureds in a minimum amount of one million dollars ($1,000,000)
combined single limit; and
13. The sidewalk vendor has satisfactorily provided all information requested by the
director of finance, to consider the vendor’s application.
(b) A sidewalk vendor permit is nontransferable. Any change in ownership or operation
of a sidewalk vendor or sidewalk vending receptacle requires a new permit under
this article.
(c) All permits issued under this article shall expire twelve (12) months from date of
issuance.
9-191.4 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 sidewal k
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, and may not be attached or affixed to any adjacent public or pr ivate
property;
(e) Sidewalk vendors shall not use any electrical, flashing, wind powered, or animated
sign;
(f) Sidewalk vending receptacles shall not be stored on any public property and shall
be removed when not in active use by a sidewalk vendor;
(g) No sidewalk vending receptacle shall be loaded, unloaded, stocked or re -stocked
with merchandise and/or food while on any public property, unless specifically
authorized to do so by the terms of the permit, or on any publicly accessible private
property without the prior written permission signed by the owner of that property;
(h) All sidewalk vendors shall allow a police officer, firefi ghter, code enforcement
officer, park ranger, health inspector, or other government official charged with
enforcing laws related to the sidewalk vendor’s activities, at any time, to inspect
their sidewalk vending receptacle for compliance with the size requirements of this
article and to ensure the safe operation of any heating elements used to prepare
food;
(i) Sidewalk vending receptacles and any attachments thereto shall not exceed a total
height of four (4) feet measured from the ground, a total width of four (4) feet, and
a total length of four (4) feet, except that if equipped with an awning, umbrella or
similar attachment designed to provide shade and/or shelter, such attachment
shall be a minimum of seven (7) feet high;
(j) No sidewalk vending receptacle shall contain or use propane, natural gas,
batteries, or other explosive or hazardous materials unless specifically authorized
to do so by the terms an applicable health permit;
(k) No sidewalk vendor may utilize any generator unless specifically authorized to do
so by the terms of an applicable health permit;
(l) If a sidewalk vending receptacle requires more than one person to conduct the
sidewalk vending activity, all sidewalk vendors associated with the sidewalk
vending receptacle shall be within five feet of the sidewalk vending receptacle
when conducting sidewalk vending activities;
(m) Sidewalk vendors that sell food shall have in their possession at all times they are
conducting sidewalk vending activities a valid permit issued by the Health
Department as required by Chapter II of Title 8 of this Code;
(n) 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 place any trash receptacle in or on any public property o r right-of-way.
Sidewalk vendors shall not leave any location without first picking up, removing,
and disposing of all trash or refuse from their operation;
(o) Sidewalk vendors shall not discharge any solid or liquid matter onto any public
property, and shall immediately clean up any food, grease or other liquid or item
related to their sidewalk vending activities that falls on or is otherwise discharged
onto public property;
(p) Sidewalk vendors shall maintain a minimum of a four-foot (4’) clear accessible path
free from obstructions, including sidewalk vending receptacles and customer
queuing area;
(q) Sidewalk vendors shall not create or set up any seating or table area within the
public right-of-way;
(r) Sidewalk vendors shall comply with the noise standards set forth in Chapter XIII of
Title 13 of this Code;
(s) Sidewalk vendors shall ensure that all required insurance including any
endorsement is in effect prior to conducting any sidewalk vendor activities and
maintained for the duration of the permit;
(t) Upon request, sidewalk vendors must provide a receipt for any merchandise or
food sold to a customer; and
(u) Sidewalk vendors shall ensure that any employee thereof or other person engaged
in any sidewalk vending activity on their behalf must conform to the applicable
provisions of state law regarding the minimum ages and hours of employment.
9-191.5 Prohibited Activities and Locations.
(a) Sidewalk vendors shall comply with all operating conditions including those
conditions set forth in section 9-191.4.
(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, trash cans 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:
i. Anywhere in the city between the hours of 11:00 p.m. and 7:00 a.m. daily,
unless the sidewalk vendor is operating within five hundred (500) feet of
another business open to the public that is legally operating dur ing those
hours, in which case sidewalk vendors may operate during the hours in
which the adjacent business is legally open to the public;
ii. On sidewalks or pathways directly adjacent to or within residentially zoned
areas, between 5:00 p.m. and 9:00 a.m. daily;
iii. Anywhere in any park while the park is closed pursuant to the provision of
section 12-23; and
iv. In such a manner as to block access to a fire hydrant.
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 and/or merchandise for sale regarding those items of food and/or
merchandise;
9. Blocking or impeding the path of the person(s) being offered food or merchandise
to purchase;
10. Making any statement, 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. Interfering with any person engaged in or observing an organized recreational or
sporting activity being conducted in or adjacent to any park or other public area,
by blocking, distracting or impeding the movement or view of any such person or
otherwise disrupting the recreational or sporting activity;
13. Advertising any product or service that is not related to the food or merchandise
being offered for immediate sale; and/or
14. Placing 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. Any capital facility or any path or sidewalk adjacent thereto, including but not
limited to the Civic Center;
2. Any public property that does not meet the definition of a sidewalk or pathway
including, but not limited to, any alley, trail, bike path, square, street, street end, or
parking lot;
3. On any bike path, or on a mixed use path where both bicycles and pedestrians are
permitted;
4. Stationary sidewalk vendors may not operate on any sidewalk or pathway that is
less than eight feet (8’) wide;
5. Mobile sidewalk vendors may not operate on any sidewalk or pathway that is less
than four feet (4’) wide;
6. On any sidewalk, pathway or other area while public access to such area is posted
as being closed or otherwise limited;
7. On any city owned or controlled sidewalk or path immediately adjacent to the
Orange County Fairgrounds during the time the Orange County Fair is in session;
8. Within Fairview Park, unless pursuant to the terms of a special event permit;
9. Within two hundred (200) feet of:
i. A police station;
ii. A fire station;
iii. Any capital facility;
iv. A permitted certified farmers’ market or swap meet during the limited
operating hours of that certified farmers’ market or swap meet;
v. An area designated for a special event, pursuant to permit issued, or when
sponsored, 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, unless the special
event permit or city sponsorship affirmatively includes provisions allowing
for sidewalk vending; or
vi. Any construction activities in or on the public-right-of way.
10. Within one hundred (100) feet of:
i. A public or private school, a place of worship, or a child day-care facility;
ii. The intersection of a street and a sidewalk;
iii. Any public picnic area, playground area or playground equipment;
iv. The portion of any city facility that is renting merchandise or selling food to
the public or where the rental merchandise is stored;
v. Any police officer, firefighter, lifeguard or emergency medical personnel
who are actively performing their duties or providing services to the public;
or
vi. If vending food, a dog park.
11. Within twenty-five (25) feet of a:
i. Public swimming pool;
ii. Curb which has been designated as white, yellow, green, blue, or red zone,
or a bus zone;
iii. Automated teller machine;
iv. Driveway, alley, or entrance to a parking lot or parking garage;
v. Entrance or exit to a building, structure or facility;
vi. Storm water catchment basin;
vii. Trash receptacle, bike rack, bench, bus stop, restroom, or similar public use
items; or
viii. Any public community center, athletic field, softball/baseball diamond,
basketball court, handball court, pickleball court, tennis court, soccer field,
golf course or volleyball court.
(e) Stationary sidewalk vendors shall not sell food or merchandise or engage in any
sidewalk vending activities:
1. At any park where the city has signed an agreement for concessions with the
operator of the park that exclusively permits the sale of food or merchandise by
the concessionaire; or
2. On sidewalks or pathways directly adjacent to or within residential areas.
9-191.6 Penalties.
(a) Violations of this article shall not be prosecuted as infractions or misdemeanors
and shall only be punished by civil citation issued pursuant to Article II of Title 1
subject to the limitations of this section.
(b) Any violation of this article may be assessed an administrative fine in an amount
authorized by Government Code section 51039 or any applicable successor
section thereto as set forth in a schedule of fines adopted by resolution of the city
council.
(c) The issuing officer may rescind or revoke a permit issued to a sidewalk vendor for
the term of that permit upon the fourth violation or subsequent violations; and
(d) The provisions and limitations of this section shall not apply to a violation of any
other provision of this Code or other law or regulation, including but not limited to
the California Retail Food Code.
9-191.7 Appeals.
(a) Appeals of civil citations shall be had pursuant to the administrative review
provisions of Article II of Title 1.
1. A person cited may request an ability-to-pay determination, contest that there was
a violation of this Code, that he or she is the responsible person, or otherwise
appeal the citation by filing a request for an administrative review pursuant to
section 1-42. Notwithstanding the time limits set forth in Article II of Title 1, any
person requesting a hearing and ability-to-pay determination may file the request
pursuant to Government Code section 51039(f)(1);
2. A person cited may file for a hardship waiver in accordance with section 1-44;
3. In addition to and notwithstanding the limitation of the powers set forth in Article II
of Title 1, the hearing officer shall have the power to:
i. Reduce the fine based upon the person’s ability to pay the fine; or
ii. If the hearing officer finds the person meets the criteria described in
subdivision (a) or (b) of Government Code section 68632, the hearing officer
shall order the city to accept, in full satisfaction, twenty (20) percent of the
administrative fine imposed pursuant to this article;
4. All appeals of civil citations shall be conducted in accordance with section 1-46;
and
5. Failure to pay an administrative fine pursuant to this article shall not be punishable
as an infraction or misdemeanor, nor shall fines, fees, assessments, or any other
financial conditions beyond those authorized by this article be assessed.
(b) Decisions of the issuing officer to deny, rescind and/or revoke a permit may be
appealed pursuant to section 9-121.
9-191.8 Enforcement.
The provisions of this article may be enforced and civil citations may be issued by persons
authorized to do so by the city manager pursuant to section 2 -114.
9-191.9 Impoundment.
All police officers, code enforcement officers, inspectors and civilian police field personnel
of the City are authorized and empowered to remove or cause to be removed and /or
stored any sidewalk vending receptacle placed, parked, and/or left unattended upon any
public property contrary to the provisions of this Article and to destroy any perishable
contents thereof prior to storage, pursuant to the provisions of sections 11-306 through
11-328. If physically present, the owner or operator shall first be given an opportunity to
remove the receptacle. The owner or operator of the receptacle shall be liable to the City
for any reasonable storage charges.
Section 3. Environmental Compliance. Pursuant to the provisions of the
California Environmental Quality Act (“CEQA”) (California Public Resources Code
Sections 21000 et seq.) and State CEQA guidelines (Sections 15000 et seq.) the
ordinance is not a “project” and further, that it can be seen with certainty that there is no
possibility that the ordinance in question may have a significant effect on the environment,
either directly or indirectly, and that therefore no environmental review under the CEQA
is required, pursuant to CEQA Guidelines Section 15061(b)(3).
Section 4. Inconsistencies. Any provision of the Costa Mesa Municipal Code or
appendices thereto inconsistent with the provisions of the Ordinance, to the extent of such
inconsistencies and no further, are repealed or modified to that extent necessary to affect
the provisions of this Ordinance.
Section 5. Severability. If any chapter, article, section, subsection, subdivision,
sentence, clause, phrase, word, or portion of this Ordinance, or the application thereof to
any person, is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portion of this Ordinance or its application to other persons. The City Council hereby
declares that it would have adopted this Ordinance and each chapter, article, section,
subsection, subdivision, sentence, clause, phrase, word, or portion thereof, irrespective
of the fact that any one or more sub sections, subdivisions, sentences, clauses, phrases,
or portions of the application thereof to any person, be declared invalid or unconstitutional.
No portion of this Ordinance shall supersede any local, State, or Federal law, regulation,
or codes dealing with life safety factors.
Section 6. Effective Date. This Ordinance shall become effective thirty (30) days
from its adoption.
Section 7. Certification. The City Clerk shall certify the passage and adoption
of this Ordinance and shall cause the same to be posted or published in the manner as
required by law.
PASSED AND ADOPTED this 15th day of October, 2019.
_____________________________
Katrina Foley, Mayor
ATTEST: APPROVED AS TO FORM:
________________________ _____________________________
Brenda Green, City Clerk Kimberly Hall Barlow, City Attorney
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY
that the above and foregoing Ordinance No. 19-XX was duly introduced for first reading
at a regular meeting of the City Council held on the 15th day of October, 2019, by the
following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the
City of Costa Mesa this 15th day of October, 2019.
________________________________
BRENDA GREEN, CITY CLERK
(SEAL)
TITLE 9 LICENSES AND BUSINESS REGULATIONS
CHAPTER II. REGULATION OF CERTAIN BUSINESSES
ARTICLE 9. PUSHCART AND OTHER SIDEWALK VENDORS
9-191. General prohibition; exceptions.
(a) General prohibition. No person shall sell or offer for sale any food, beverage, or product
from any portable box, stand, bag, basket, bucket, ice chest, shopping cart, wagon, cart, non-
motorized vehicle, or similar wheeled container on any street, alley, parkway, or sidewalk, or in any
park or unenclosed area open to the general public. No person shall employ, direct or otherwise
cause any other person to sell or offer for sale any food, beverage or product in violation of
subsection (a) of this section.
(b) Exceptions. The prohibition in subsection (a) of this section shall not apply to the
following:
(1) Persons selling or delivering to retail establishments;
(2) A person who sells edibles from a wayside stand located on property owned or controlled
by him, all of which edibles are grown or raised on such property by such person or by
members of his immediate family or under a valid single seasonal agricultural permit;
(3) The operator of a public eating place;
(4) Commercial peddling or soliciting authorized by permit pursuant to sections 9-131, 9-132
and 9-133;
(5) Pushcart vendors located within a commercial shopping center at a specified location
pursuant to a written license or lease of the private property owner or agent and in compliance
with all applicable zoning regulations;
(6) Commercial vending vehicles subject to California Vehicle Code section 22455. (Ord.
No. 97-9, § 4, 4-21-97)
9-191.1. Conducting as a nuisance.
Any pushcart operated contrary to the provisions of this article shall be and the same is hereby declared to
be unlawful and a public nuisance and the city attorney may, in addition to or in lieu of prosecuting a
criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement,
removal or enjoinment thereof, in the manner provided by law, and may take such other steps and may
apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such
establishment and restrain and enjoin any person from operating a pushcart contrary to the provisions of
this article. (Ord. No. 97-9, § 5, 4-21-97)
9-191.2. Citations for violation and minimum penalty.
All police officers, code enforcement officers, inspectors, and civilian police field personnel of the City of
Costa Mesa are authorized to issue citations to any and all persons violating any of the provisions of this
article pursuant to section 1-33 of this Code. Such citation shall be deemed to be a complaint charging
violations of this article. The minimum penalty for violation of this article shall be one hundred
($100.00). (Ord. No. 97-9, § 6, 4-21-97)
9-191.3. Impounding unlawfully operated devices.
All police officers, code enforcement officers, inspectors and civilian police field personnel of the City of
Costa Mesa are authorized and empowered to remove or cause to be removed and stored all devices
operated, parked, caused to be parked or left parked upon any sidewalk, alley, parkway, public street,
public parking lot or other public property contrary to the provisions of this Code, or illegally parked, and
to destroy the perishable contents of the device and the owner or operator of the device shall be liable for
any reasonable towing, storage charges, and costs of enforcement of the provisions of this chapter. (Ord.
No. 97-9, § 7, 4-21-97)