On September 17, 2018, former Governor Jerry Brown signed SB 946, the Safe Sidewalk Vending Act (SSVA) into law. The text of the SSVA is attached hereto. Cities choosing to regulate sidewalk vendors must comply with the SSVA by revising existing regulations, or adopting new regulations, consistent with the Act. A sidewalk vendor is defined as a person who sells food or merchandise with or without a pushcart, stand, or other non-motorized conveyance in certain public areas. Furthermore, vendors are either considered “roaming” if they sell their food or merchandise from place to place, or “stationary” if they do so from a fixed location.
The intent of the law is to “promote entrepreneurship and support immigrant and low-income communities.” The SSVA aims to protect entrepreneurs, many of which are immigrants, from criminalization and possible deportation, as well as establish parameters for the regulation of sidewalk vendors that are not overly restrictive in nature.
The areas that cities are permitted to regulate pertain to time, place and manner of sidewalk vending, provided they relate to objective health, safety, or welfare concerns. There are a number of restricted versus permissible actions cities can regulate. A few examples of restricted regulations include the following: Cities cannot simply restrict a vendor to operating within a specific area of the public right of way; they cannot require a vendor to first obtain approval from a non-governmental entity before conducting business; and they cannot prohibit a vendor from selling food or merchandise in a park owned or operated by the City.
If a city’s existing sidewalk vending program “substantially complies” with the SSVA, it is not required to adopt a new sidewalk vending program. However, Brea’s existing municipal code prohibits sidewalk vendors from operating in the public right of way, and therefore must be amended to be in compliance with state law. In some communities, particularly cities located adjacent to major attractions like the beach, sports arenas, or where there are large immigrant or low-income populations, the regulation of sidewalk vending is a significant point of discussion. In the City of Brea, sidewalk vending is not a major issue, nor is it anticipated to grow as a result of adopting the proposed ordinance and resolution. The City’s Business License Division estimates an average of 20 sidewalk vendors (under the “Peddler” category) are requested and issued annually.
In consultation with the City Attorney’s office, it was recommended that the City adopt a Sidewalk Vending Policy which deals with the three areas permitted by state law (time, place and manner). An internal staff working group met over the course of several months to review and provide feedback on the Policy. Representatives included staff from Public Works, Administrative Services (Business License and Risk Management/Human Resources), Police, and City Attorney's office.
The changes contained within the proposed Ordinance, Resolution and Sidewalk Vending Policy recommended by the working group addresses all the time, place and manner areas permitted by SB 946. Under the proposed Ordinance, Resolution, and Policy pertaining to sidewalk vending, the City will:
- Require a sidewalk vending permit, in addition to a valid City business license of any stationary or roaming sidewalk vendor. Permits are valid from date of issue until December 31st of each calendar year (to align with the requirements of business license issued)
- Require sidewalk vendors to display said sidewalk vending permit (and possess proof of insurance, for those operating under a principal’s permit for 3 or more carts)
- Require sidewalk vendors to possess a California seller’s permit
- Require sidewalk vendors selling food or food products to have proof of completion of a food handler course and all required approvals from the County of Orange, Department of Public Health
- Require operating requirements governing specific distance requirements for certain locations, such as: street intersections; fire hydrants/fire call boxes; emergency facilities; driveways/driveway aprons; certified farmer’s markets; swap meets; City events with temporary special permits; City parking lots/City parking structures; and within or upon landscaped areas
- Be indemnified against all claims and liabilities arising out of issuance of sidewalk vending permit. Applications for 3 or more vendors operating under a principal’s permit will be required to procure commercial general liability insurance of a minimum of $1,000,000 per occurrence.
- Require sidewalk vendors not to block or obstruct free movement of pedestrians or vehicles.
- Require sidewalk vendors to operate within the timeframe of 8 a.m. to 10 p.m. daily. For residential zones, this is modified to 8 a.m. to sunset, and for nonresidential zones, the hours of operation are to be aligned with the hours of operation of businesses or uses on the same street. For City parks, sidewalk vending is permitted during the open hours of the park.
- Prohibit sidewalk vendors from selling such items in a park owned or operated by the City if the City has a contract giving a concessionaire exclusive rights over the sale of these items.
- Require sidewalk vendors to provide a trash receptacle for customers and ensure proper disposal of customer trash.
- Require sidewalk vendors to comply with all applicable laws, including, but not limited to state food preparation, handling, labeling requirements, fire codes and regulations, noise standards and Americans with Disabilities Act of 1990, as well as other state and federal disability access standards.
- Prohibit sidewalk vendors from utilizing freestanding signs
Two primary City Departments will handle the oversight and implementation of the newly adopted Policy. The Administrative Services Department is anticipated to be responsible for providing applicants a copy of the Sidewalk Vending application (the Sidewalk Vending Policy will be contained in the application materials), as well as issuing sidewalk vending permits to applicants. The Brea Police Department will be responsible for field enforcement. Police officers will have the ability to issue administrative citations.
The SSVA prohibits cities from imposing criminal penalties (misdemeanors or infractions), but does allow non-criminal administrative fines to be issued, up to the maximum fines listed below.
| Violation Description |
Maximum Fine
(Operating with a valid permit) |
Maximum Fine
(Operating without a valid permit)
|
| First violation |
$100 |
$250 |
| Second violation (within 1 year of first violation) |
$200 |
$500 |
| Each additional violation (within 1 year of first violation) |
$500 |
$1,000 |
The reason for proposing a Sidewalk Vending Policy that is adopted by resolution is that, should any significant change in circumstances, or issues related to time, place, or manner of permitted vending, arise in the future, such changes can more easily and quickly be made via resolution which will take immediate effect, than through adoption of a new ordinance. Currently, there is a minimal amount of sidewalk vending activity, so the internal staff working group which met in consultation with City Attorney, created a Policy based current circumstances, with the realization that modifications could be made in the future should the need arise. |