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HomeMy WebLinkAboutCC ORD 2019-2458 Vending on City Sidewalks and Pedestrian PathwaysORDINANCE NO. 2019 - 2458 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AMENDING THE NATIONAL CITY MUNICIPAL CODE BY AMENDING CHAPTER 9.06 (FOOD VENDING), CHAPTER 10.22 (SALES ACTIVITY AND SOLICITATION FROM OR AFFECTING VEHICLES, TRAFFIC, PUBLIC PROPERTY AND AREAS, AND COMMERCIAL PARKING AREAS), CHAPTER 10.52 (REGULATIONS FOR THE USE OF MUNICIPAL PARKS, PLAYGROUNDS AND GOLF COURSES), AND ADDING CHAPTER 13.30 REGARDING VENDING ON CITY SIDEWALKS AND PEDESTRIAN PATHWAYS. WHEREAS, the City of National City (the "City"), pursuant to the police powers delegated to it by the California Constitution, has the authority to enact or amend laws which promote the public health, safety, and general welfare of its residents; and WHEREAS, new legislation under SB946 changed the way cities can control the use of their sidewalks and portions of their parks by sidewalk vendors beginning January 1, 2019; and WHEREAS, SB946 requires that any local regulation of sidewalk vendors be directly related to objective health, safety, or welfare concerns; and WHEREAS, the proposed amendments and addition of National City Municipal Code (NCMC) Chapter 13.30 are directly related to addressing objective health, safety, and welfare concerns including the potential of fires with unregulated cooking or heating of food; blocking or otherwise restricting use of sidewalks by pedestrians; blocking or impeding the use of driveways, pedestrian access ramps, doorways, and safe parking of vehicles; conflicts with those persons with disabilities and traveling on sidewalks and pedestrian paths and recreating in city parks; and noise in residential zones at unreasonable hours; and WHEREAS, pursuant to the terms and provisions of the California Government Code, proceedings were duly initiated for the amendment of the NCMC. NOW, THEREFORE, the City Council does ordain as follows: Section 1. All protests, if any, against said amendment to the Municipal Code and each of them be and hereby are denied and overruled. Section 2. If any portion of this Ordinance is found to be invalid, it is the intention of the City Council that the remaining valid provisions of the Ordinance be severed from the invalid provisions and remain in full force and effect. Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 Section 3. That Subsection 9.06.130 of the National City Municipal Code is amended to read as follows: 9.06.130 - Authority to arrest.* * This section shall not apply to activities permitted under Chapter 13.30 (Vending on City sidewalks and pedestrian pathways) The health officer and any officer or employee designated by him is hereby authorized to arrest a person without a warrant whenever he has reasonable cause to believe that the person to be arrested has committed a misdemeanor in his presence which is in violation of any statute, Ordinance or regulation relating to the operation of mobile food preparation units which the health officer or such officer or employee has the duty to enforce, including but not limited to provisions of the State of California Health and Safety Code, provisions of the California Administrative Code, and all city Ordinances relating to mobile food preparation units. In any case in which a person is arrested pursuant hereto and the person arrested does not demand to be taken before a magistrate, the public officer or employee making the arrest shall prepare a written notice to appear and release the person on his promise to appear, as prescribed by Chapter 5C (commencing with Section 853.6) of the Penal Code. The provisions of said Chapter 5C shall thereafter apply with reference to any proceeding based upon the issuance of the written notice to appear. Authority to arrest is granted in accordance with Penal Code Section 836.5. Section 4. That Subsection 10.22.040 (A) of the National City Municipal Code is amended to read as follows: A. Except upon the issuance of a permit issued pursuant to Chapter 13.30, Chapter 15.60, or as provided in Section 10.22.040(B), it is unlawful to sell or display any merchandise upon or within a public sidewalk or right-of-way, any public park or any other public property. Section 5. That subsection 10.22.050 of the National City Municipal Code, is hereby repealed. Section 6. That subsection 10.22.060 (E) of the National City Municipal Code, is amended to read as follows: E. Sales or display of merchandise upon public sidewalks is prohibited unless permitted pursuant to Chapter 13.30. Section 7. That subsection (X), of section 10.52.010 of the National City Municipal Code, is hereby repealed. Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 Section 8. Subsection (X) is hereby added to section 10.52.010 of the National City Municipal Code to read as follows: X. Vend, offer for sale, or dispose of goods, wares or merchandise, or conduct any business unless authorized to do so by Chapter 13.30, or by the City Council or their designee, except that nothing in this provision shall prohibit religious or political solicitations subject to subsection (II) of section 10.52.010. Section 9. Subsection (II) is hereby added to section 10.52.010 of the National City Municipal Code to read as follows: II. No person shall throw or deposit any commercial or noncommercial handbill circulars, pamphlets, tracts, or advertisements in or upon any sidewalk, street or other public place within the city. Nothing herein shall prevent any person from handing out, distributing, or selling any commercial handbill on any public sidewalk or pedestrian pathway in conformance with Chapter 13.30 of this code provided, however, that no person shall hand out, distribute, or sell any commercial handbill in any other public place not allowed by Chapter 13.30. Further, it is not unlawful on any sidewalk, street, pedestrian pathway, or other public place within the city for any person to hand out or distribute, without charge to the receiver thereof, any noncommercial handbill to any person willing to accept it. No person shall post or affix to any pole, tree, car, fence or structure situated therein any kind of handbill, circular, pamphlet, tract, or advertisement. Section 10. Subsection (JJ) is hereby added to section 10.52.010 of the National City Municipal Code to read as follows: JJ. Except as otherwise provided in subdivision (1) of this subsection, operate any food establishment (as defined in Section 113780 of the California Health and Safety Code), mobile food facility (as defined in Section 113900 of the California Health and Safety Code), vending machine (as defined in Section 113903 of the California Health and Safety Code), produce stand (as defined in Section 113855 of the California Health and Safety Code), swap meet prepackaged food stand (as defined in Section 113905 of the California Health and Safety Code), temporary food facility (as defined in Section 113895 of the California Health and Safety Code), satellite food distribution facility (as defined in Section 113880 of the California Health and Safety Code), stationary mobile food preparation unit (as defined in Section 113890 of the California Health and Safety Code), mobile food preparation unit (as defined in Section 113815 of the California Health and Safety Code) or open air barbecue facility (as defined in Section 113830 of the California Health and Safety Code). 1. This subsection is not intended to prohibit activities wherein no permanent facilities are used for storing or handling food, nor families, groups, or other organizations which give or sell Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 food to its members and guests at occasional events. For the purposes of this subsection the term "occasional event" means an event that occurs not more than two days in any ninety -day period. 2. This prohibition does not apply to: (a) special events in accordance with Chapter 15.60; (b) a City Council sponsored community event; (c) sidewalk vendors in accordance with Chapter 13.30; (d) those who have obtained the necessary permit to hold an event in a city park, at a city recreation center, or community center. 3. The exception found in subdivision (1) of this subsection shall not be construed to allow a person to use park property as a mobile or stationary kitchen, "eating establishment", restaurant or similar purpose to provide food to the general public, including but not limited to a food bank as defined in Section 114445 of the California Health and Safety Code. Section 11. Chapter 13.30 is hereby added to Title 13 of the National City Municipal Code as follows: Chapter 13.30 VENDING ON CITY SIDEWALKS AND PEDESTRIAN PATHWAYS. Section 13.30.010 Purpose and intent. The City of National City hereby finds and determines that the unrestricted use of the city's public rights -of -way, parks, and facilities by both stationary and roaming sidewalk vendors poses a serious and objective threat to the health, safety, and welfare of persons utilizing such public facilities for their intended purposes. Such threats include the potential of fires with unregulated cooking or heating of food; blocking or otherwise restricting use of sidewalks by pedestrians; blocking or impeding the use of driveways, pedestrian access ramps, doorways, and safe parking of vehicles; interfering with the intended and designated recreational uses of parks and playgrounds; conflicts with those persons with disabilities and traveling on sidewalks and pedestrian paths, and recreating in city parks; and noise in residential zones at unreasonable hours. Accordingly, the city finds that those regulations, established by this chapter, are directly related to addressing such objective health, safety, and welfare concerns. Section 13.30.020 Definitions. The following definitions shall be applicable when the following words or phrases are used hereafter in this chapter whether the words or phrases are capitalized or not. "Beginning of Curb Return" means the area that includes the intersection of two sidewalks bounded by the adjoining corner. Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 "Driveway" means any approved curb cut designed to allow vehicular traffic ingress from or egress to or from a street or alley. "Healthy Food" means food which provides vital nutrients with limited fats cholesterol, sodium and added sugar, as defined in the Food Action Plan. "Immediate vicinity," for the purposes of this chapter, means the public sidewalk or pedestrian path area next to, and having access to an area being used by a properly permitted certified farmers' market, swap meet, parade, or other event having obtained a temporary special use permit for the occupation of an area in a park, on city property, or in a city street or alley. "Pedestrian path" means an improved pathway within a city park designed and constructed to allow pedestrian traffic to circulate within the park from a public sidewalk or parking lot, to other locations within the park. "Public sidewalk" means that portion of public right-of-way improved with an impervious surface to allow pedestrian traffic, including wheelchairs (whether motorized or self-propelled), to traverse adjacent to a street or alley. Public sidewalk does not include any portion of a street or alley, and (except as otherwise provided in this chapter) does not include improved walkways located on public property used to access public buildings, not otherwise located in a dedicated right-of-way. Notwithstanding the foregoing, a public sidewalk shall include any pedestrian path located in any park owned or operated by the city. "Ramp" means any transition from the street to a public sidewalk designed to allow the safe movement of wheelchairs and pedestrians. "Roaming sidewalk vendor" means a sidewalk vendor who moves from place to place, stopping only to complete a transaction. "Sidewalk vendor" means a person who sells food or merchandise from a pushcart, stand, display, pedal -driven cart, wagon, showcase, rack or other non - motorized conveyance, or from one's person, upon a public sidewalk or other pedestrian path. A sidewalk vendor is either a stationary sidewalk vendor or a roaming sidewalk vendor. "Sidewalk vendor's license," or "license" shall mean that certain regulatory license established under subdivision (B) of section 13.30.030. The license shall be in addition to any other licenses or permits required by the city or San Diego County. "Stationary sidewalk vendor" means a sidewalk vendor who vends from a fixed location on a public sidewalk or pedestrian path. Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 "Temporary use permit" means a temporary use permit as defined by Chapter 15.60. Any holder of a temporary use permit that is required to provide notice, business interruption mitigation, or other rights to affected businesses and property owners must also provide the same notice, business interruption mitigation, or other rights to properly licensed sidewalk vendors. Section 13.30.030 Licenses required. A. It is unlawful for any person to engage in, conduct, carry on, or allow to be engaged in, conducted, or carried on, any business as a stationary sidewalk vendor or a roaming sidewalk vendor without having first obtained a business license pursuant to Chapters 6.04 of this code, a sidewalk vendor's license from the public works department pursuant to section 13.30.030 (B); and a seller's permit issued by the California Department of Tax and Fee Administration. If the sidewalk vendor is selling food, it shall also comply with Chapter 9.04 and obtain the necessary health -related permit from the County of San Diego Department of Environmental Health. B. In order to regulate the activities of sidewalk vendors in the city, a sidewalk vendor's license is hereby created. 1. A sidewalk vendor's license shall be issued by the public works department upon application of any person. 2. The cost of a sidewalk vendor's license shall be set forth by resolution of the City Council from time to time, and may be included in the city's list of rates, fees, and charges. 3. The Director of Public Works, or such person designated by the Director of Public Works, shall issue the license to an applicant upon receipt of such fees, information, and copies of such documents required in this chapter. 4. The license shall at all times be prominently displayed on the person, pushcart, stand, display, pedal -driven cart, wagon, showcase, rack or other non -motorized conveyance. 5. If a license is lost, stolen, or damaged, the sidewalk vendor shall not conduct business without first obtaining a replacement license from the Public Works Department to be displayed as described in paragraph (4), above. The department may charge a fee for the replacement of a lost, stolen, or damaged license, which fee shall not exceed the costs of the department in processing the temporary and replacement licenses. 6. Each license shall be valid for a period of twelve (12) months. Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 C. In issuing a business license to a sidewalk vendor, the Department of Finance shall accept either a California driver's license or identification number, or an individual taxpayer number in lieu of a social security number if the Department of Finance otherwise requires a social security number prior to the issuance of a business license. D. This chapter does not relieve any license holder from compliance with any requirement of any Ordinance, rule, regulation, or specification of the city. Section 13.30.040 Sidewalk vending operating requirements. All stationary sidewalk vendors or roaming sidewalk vendors shall comply with the following requirements: A. Except as otherwise provided in this chapter, stationary sidewalk vendors and roaming sidewalk vendors may only conduct transactions on public sidewalks in the public right-of-way, and on pedestrian paths in parks owned or operated by the city. B. Stationary sidewalk vendors shall only be located on public sidewalks and pedestrian paths of not less than ten (10) feet in width measured from the street -side edge of the sidewalk or from edge to edge of the path. C. Roaming sidewalk vendors may travel on public sidewalks and pedestrian paths of not less than four (4) feet in width measured from the street -side edge of the sidewalk or from edge to edge of the path while moving. Roaming sidewalk vendors stopping to conduct a transaction must do so only where the sidewalk or path is ten (10) feet in width or must yield to pedestrian traffic in conflict with the conduct of their business. D. Operations of stationary sidewalk vendors on a public sidewalk shall only occur during the hours of 8:00 a.m. and 10:00 p.m. Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 E. Vending food or merchandise on City sidewalks shall be prohibited: 1. Within 5 feet of a marked crosswalk. 2. Within 5 feet of the beginning of curb return of an unmarked crosswalk. 3. Within 5 feet of any fire hydrant or other emergency facility. 4. Within 5 feet ahead and 45 feet to the rear of a sign designating a bus stop. 5. Within a marked bus zone. 6. Within 5 feet of a bus bench. 7. Within 10 feet of a transit shelter. 8. Within 5 feet of an area improved with lawn, flowers, shrubs, trees or street tree well. 9. Within 5 feet of a driveway or driveway apron. 10. Within 4 feet of an outdoor dining or patio dining area. 11. Within 18 inches from the edge of the curb. 12.Where placement impedes the flow of pedestrian traffic by reducing the clear space to less than 6 feet, or impedes access to or the use of abutting property, including, but not limited to, residences and places of business. F Notwithstanding any specific prohibitions in this subsection, no vendor shall be located where operation endangers the safety of persons or property. G. Operations of stationary sidewalk vendors are prohibited in the OS, OSR, RS-1, RS-2, RS-3, RS-4, RM-1, RM-2, RM-3 zones, and in the CZ and MHP overlays. H Operations of roaming sidewalk vendors may occur in the OS, OSR, RS- 1, RS-2, RS-3, RS-4, RM-1, RM-2, RM-3 zones, and in the CZ and MHP overlays, but only occur during the hours of 7:00 a.m. and 7:00 p.m. I. Vending within 500 feet of any K-12 school is prohibited from 6:00 a.m. through 6:00 p.m., unless the vendor is selling exclusively Healthy Food. J. Operations of sidewalk vendors in public parks shall only occur on the pedestrian path, or a public sidewalk, and only during the period that the park is open. In order to protect the fragile nature of greenspace in parks, sidewalk vendors shall conduct all activities from a public sidewalk or pedestrian path. K. In order to limit obstructions caused by a congregation of customers during periods of operations, and to clearly delineate responsibilities in operation, sidewalk vendors shall be located not closer than twenty (20) feet from another sidewalk vendor. Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 L. In order to reduce vector, rodent, and other pest infestations, stationary sidewalk vendors shall be responsible for the cleanliness of the area within ten (10) feet of their operations. Stationary sidewalk vendors shall provide a means to collect and properly dispose of all trash and recycling materials, including owning and making available appropriate trash and recycling receptacles. Roaming sidewalk vendors shall have trash bags attached to their cart or carried by the vendor sufficient to provide for the collection of such trash or recycling materials generated by the type of goods, produce, pre -packaged goods, etc., being sold from the vendor. All sidewalk vendors shall provide the city with an acceptable plan for collection and disposal of wastes at the time that an application for those permits required by this chapter, which plan must be approved by the Director of Public Works or such person designated by the Director of Public Works. Such plans must include the means for avoiding the use of city -owned trash and recycling receptacles. M. No sidewalk vending is allowed within the immediate vicinity of any permitted certified farmers' market or permitted swap meet in the city. No sidewalk vending is allowed within the immediate vicinity of any street or alley, park, plaza, parking lot, or city -owned property, in any event that is being used by the city or a third party under a Temporary Use Permit. No sidewalk vending is allowed in any park where the city has signed an agreement with a concessionaire for the exclusive right to sell food or merchandise in the park. N. No sidewalk vendor shall sell any alcohol -related beverage; tobacco or electronic smoking devices; cannabis products; weapons, including knives, guns, or explosive devices; pharmaceuticals; items described in the definition of adult entertainment activities in Section 18.30.030 of Chapter 18.30 of this code; or such other products identified in a list adopted by resolution or Ordinance of the City Council as prohibited for sidewalk vending based on public health, safety, or welfare concerns. O. In order to maintain public safety and visibility in front of buildings which front directly on a public street, stationary sidewalk vendors shall not occupy the area directly in front of a transparent window or within three feet of an entry or exit. Section 13.30.050 Enforcement. The provisions of this chapter shall be enforced by the Fire Marshal, any police officer, any code compliance officer, and any other City official authorized to enforce any provision of the Municipal Code. Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 Section 13.30.060 Violation; penalties. A. Notwithstanding any provisions in Chapter 1.20 of this code, no person shall be subject to any criminal prosecution as a result of a violation of this chapter. B. Except as provided in subsections (C) and (D), in this section, any person violating any provision of this chapter may be issued an administrative citation for each and every violation, in the manner as prescribed in sections 1.44.010 through 1.44.040 of Chapter 1.44 of the National City Municipal Code. C. Notwithstanding any provisions in section 1.44.050 of Chapter 1.44, no administrative fine shall exceed five hundred (500) dollars for any violation of section 13.30.040. D. Notwithstanding any provisions in section 1.44.050 of Chapter 1.44, for any violation of section 13.30.030, the amount of administrative fine, which may be imposed for each separate violation of the same provision of the code, shall be established by resolution of the City Council within the following limits: 1. For a first violation, a fine not to exceed two hundred fifty (100) dollars per day, per violation; 2. For a second violation of the same code section within a twelve- month period, a fine not to exceed five hundred (200) dollars per day, per violation; and 3. For any additional violation of the same code section within a twelve-month period, a fine not to exceed one thousand (500) dollars per day, per violation. E. Sections 1.44.060 through 1.44.120 shall apply to any administrative citation issued to enforce this chapter. Section 13.30.070 Public Nuisance and Abatement. The placement of any vending cart on any sidewalk in violation of the provisions of this chapter is declared to be a public nuisance. The Director of Public Works, Director of Neighborhood Services, and/or any Police or Code Enforcement Officer may cause the removal of any vending cart found on a sidewalk in violation of this chapter and is authorized to store such vending cart until the owner thereof shall redeem it by paying the removal and storage charges established by resolution of the City Council. Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 Section 12. That based upon said findings of fact set forth in section 2 of this Ordinance, the City Council of the City of National City hereby approves the amendments of Chapters 9.06 and 10.52, and to Title 13 of the National City Municipal Code to add Chapter 13.30 as set out herein. Section 13. This Ordinance shall become effective thirty (30) days following its passage and adoption. PASSED and ADOPTED this 21st day o leja rezeMichael R. Dalla, City Clerk APPROVED AS TO FORM: An. — . Morris -Jo 43111. ip Attorney 41, �0 7Ifivid lis, Mayor Ordinance No. 2019-2458 Amending NCMC May 21, 2019 Titles 9, 10, and 13 Passed and adopted by the Council of the City of National City, California, on May 21, 2019 by the following vote, to -wit: Ayes: Councilmembers Cano, Quintero, Rios, Sotelo-Solis. Nays: Morrison. Absent: None. Abstain: None. AUTHENTICATED BY: ALEJANDRA SOTELO-SOLIS Mayor of the City of National City, California City Clerk of the City of National City, California By: I HEREBY CERTIFY that the foregoing ordinance was not finally adopted until seven calendar days had elapsed between the day of its introduction and the day of its final passage, to wit, on April 16, 2019 and on May 21, 2019. I FURTHER CERTIFY THAT said ordinance was read in full prior to its final passage or that the reading of said ordinance in full was dispensed with by a vote of not less than a majority of the members elected to the Council and that there was available for the consideration of each member of the Council and the public prior to the day of its passage a written or printed copy of said ordinance. I FURTHER CERTIFY that the above and foregoing is a full, true and correct copy of ORDINANCE NO. 2019-2458 of the City Council of the City of National City, passed and adopted by the Council of said City on May 21, 2019. By: City Clerk of the City of National City, California Deputy