Report Prepared by: Kim Espinosa, Planning Manager, Development Services Department
Title
SUBJECT: Second Reading and Final Adoption of an Ordinance to Amend Merced Municipal Code Section 5.54 Regarding Street and Sidewalk Vendors, Including Definitions, Application Requirements, Designated Locations, Hours of Operation, Products Sold, and Revocation of Permits
REPORT IN BRIEF
Second reading and final adoption of an Ordinance to amend the City’s regulations for Street and Sidewalk Vendors as directed by City Council on July 6, 2021, including modifications to definitions, application requirements, designated locations, hours of operation, products sold, and revocation of permits.
RECOMMENDATION
City Council - Adopt a motion adopting Ordinance 2529, An Ordinance of the City Council of the City of Merced, California, Amending Section 5.54 (Street and Sidewalk Vendors) of the Merced Municipal Code.
Body
ALTERNATIVES
1. Adopt the Ordinance as recommended by staff; or,
2. Deny the request; or,
3. Return the Ordinance to staff for further modifications as directed by City Council (specific modifications to be set forth in motion); or,
4. Continue the item to a future City Council meeting (date to be specified in motion).
AUTHORITY
Senate Bill 946, adopted in 2018, sets forth requirements for local sidewalk vendor ordinances.
CITY COUNCIL PRIORITIES
In the 2021-22 Council Goals and Priorities, Item 2.b.i is “Business Friendly Culture-accommodating to new business development” which would include street and sidewalk vendors. On July 6, 2021, the City Council provided direction to staff to amend the Street and Sidewalk Vendor Ordinance as proposed.
DISCUSSION
Previous City Council Direction
At the July 6, 2021, meeting, the City Council gave direction to amend the City’s Street and Sidewalk Vendor Ordinance to address the requirements of Senate Bill (SB) 946 and other issues as outlined by staff in the administrative report. The Council did not ask for any additional modifications so the information provided below is the same as what was provided on July 6 with a few minor edits. The Draft Ordinance can be found at Attachments 2 and 3 in redline and final formats, respectively.
Background
SB 946 (Attachment 1), adopted in 2018, addressed issues facing sidewalk vendors and regulated local authorities, requiring jurisdictions to have “objective health, safety or welfare concerns” for ordinances pertaining to vendors. In addition, the bill removed criminal penalties for violating ordinances regulating sidewalk vendors and required the dismissal of prosecutions for violation of such ordinances, and potential dismissal of conviction of misdemeanors or infractions for sidewalk vending violations.
SB 946 states that “sidewalk vending provides important entrepreneurship and economic development opportunities to low-income and immigrant communities… Increases access to desired goods, such as culturally significant food and merchandise… (and) contributes to a safe and dynamic public space.”
The bill has provisions for regulating sidewalk vendor operations, including administrative fines to encourage compliance. While the bill said cities did not need to change their ordinances if they “substantially comply” with the bill, there are three areas where the City appears to be out of compliance with SB 946. While reviewing the City’s ordinance, staff found other conflicts and potential issues that are raised by the passage of SB 946 and is also modifying those areas in the Draft Ordinance.
The City ordinance was written in 1987 and regulated street vendors and sidewalk vendors under the same rules. SB 946 only addressed sidewalk vendors. If the City were to implement SB 946 only for sidewalk vendors, there would be two sets of regulations for establishing vending permits, potential penalties, and hours of operations. The Draft Ordinance has been rewritten so that changes will apply to sidewalk vendors and street vendors to make it easier for administration and compliance. SB 946 includes a more detailed definition of sidewalk vendors than was included in the City’s ordinance.
Changes Required by SB 946
Due to SB 946, there are three modifications that should be made to the City ordinance:
• Providing additional options for identification besides a social security number, which the City cannot make mandatory under the bill, but can include as an option. (Sec. 5.54.030)
• Designating a location for sidewalk vendors. Under SB 946, “roaming sidewalk vendors” are allowed in the City, unless there is a public health or safety reason for preventing them from operating in a particular location. Roaming sidewalk vendors cannot be banned from residential areas under the bill. (Sec. 5.54.080)
• Revoking a permit for the first offense. The City ordinance allows for a permit to be revoked immediately for violating any provision of the ordinance, while SB 946 allows for an administrative process if a vendor did not comply with the application process. (Sec. 5.54.160)
Application for Permit (Sec. 5.54.030)
Currently, the City ordinance requires sidewalk vendor applicants to have a social security number and a driver’s license number for submission. Under SB 946, the City must accept a “California driver’s license or identification number, an individual taxpayer identification number or a municipal identification number in lieu of a social security number…”
Staff changed the application language so that both sidewalk vendors and street vendors would be able to use the same forms of identification for an application.
Designated Location - Sidewalk Vendors (Sec. 5.54.080)
The City ordinance says sidewalk vendors “shall only operate at a designated fixed location” and also says “pushcarts are prohibited from travelling along the sidewalks of the city.” SB 946 says the City “shall not restrict sidewalk vendors to operate only in a designated neighborhood or area, except when that restriction is directly related to objective health, safety or welfare concerns.” The law says the City can ban stationary sidewalk vendors in residential zones, “but shall not prohibit roaming sidewalk vendors.”
A prohibition on operating within 500 feet of other sidewalk vendors and near businesses selling food and drink should be eliminated from the City ordinance because SB 946 states “perceived community animus or economic competition does not constitute an objective health, safety, or welfare concern.”
The Fire Chief is requesting the addition of a prohibition on operating near fire hydrants and similar fire protection systems in the interest of public safety. The ordinance has been amended to say sidewalk vendors shall not locate “so that fire hydrants, fire department inlet connections or fire protection system control valves, and fire department access lanes are obstructed.”
Revocation of Permit (Sec. 5.54.160)
Under SB 946, regulatory offenses for sidewalk vendors are decriminalized, so failure to obtain a permit becomes an administrative matter, not a criminal offense. The City ordinance allows the permit of a sidewalk vendor or a street vendor to be revoked for any violation of the City ordinance upon the first offense. SB 946 sets out a process where the permit cannot be revoked until the fourth, or subsequent, violation.
Staff included the same administrative process from SB 946 in the draft ordinance, except the first violation in Merced results in a warning, rather than a possible $100 fine. The administrative process used for sidewalk vendors is also applied to street vendors under the draft ordinance, as there is nothing currently in place except revoking the permit.
The SB 946 administrative process also allows for fines to be forgiven if a permit is obtained. The bill also allows for fines to be lowered or waived under various circumstances including if the vendor qualifies as low income, and to use community service instead of fines if desired.
Other Ordinance Changes
SB 946 also makes changes to the operations of sidewalk vendors that conflict with the City’s current ordinance. The Draft Ordinance at Attachments 2 and 3 reflects those changes as well.
Hours of Operation (Sec. 5.54.100)
The current ordinance says street and sidewalk vendors can only operate from 10 a.m. to 8 p.m. The law states, “In nonresidential areas, any limitations on the hours of operations for sidewalk vending shall not be more restrictive than any limitations on hours of operation on other business or uses on the same street.” The 10 a.m. to 8 p.m. hours of operation appears to comply with the law for residential zones.
The City does not currently limit hours of operation for businesses in other zones of the City. There are some uses controlled by Conditional Use Permits, (CUPs) that are regulated, but that varies throughout the City. Any limits the City Council imposes for non-residential areas must not be “unduly restrictive,” and they must be “directly related to objective health, safety, or welfare concerns.”
Products Sold (Sec. 5.54.110)
The City ordinance says “Street vendors and sidewalk vendors shall only sell food and nonalcoholic drinks. The sale of goods and/or merchandise is prohibited.” This limit doesn’t appear to be based on “health, safety, or welfare” concerns as required by SB 946, but on economic competition. Under SB 946, sidewalk vendors can sell goods and merchandise and the ordinance was amended to allow that for sidewalk vendors. To make the ordinance consistent, the product limits on both street vendors and sidewalk vendors were eliminated.
Stopping and parking -Street vendors (Sec. 5.54.090)
Staff has modified this section to eliminate the words “and only at the request of a bona fide purchaser” because the operators don’t tend to be flagged down, but instead they park and remain temporarily located to attract customers to their locations. Staff also recommends that the time limit be changed to 60 minutes because 10 minutes often doesn’t give street vendors time to set up before they begin vending, especially if it involves food preparation.
City Council Action
City Council should adopt the Ordinance at Attachment 2 that was introduced at a noticed Public Hearing on August 2, 2021.
IMPACT ON CITY RESOURCES
No appropriation of funds is needed at this time.
ATTACHMENTS
1. SB 946
2. Ordinance (Final)