REPORT TO COUNCIL
SUBJECT
Title
Action on Policy Options to Amend Regulations Related to Street Vending Activities in the City of Santa Clara
Report
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
Enhance Community Engagement and Transparency
BACKGROUND
Mr. Gibbins, owner of The Hot Dog Dude, operates a sidewalk vending business on the 5000 block of Stars and Stripes Drive near Levi’s Stadium. Mr. Gibbins has attended Council meetings on multiple occasions to express concerns regarding the sidewalk vending that is occurring during events at Levi’s Stadium. From his perspective, it appears that there are several unpermitted vendors conducting business on event days. It is also his belief that a lack of permitting enforcement is having a negative financial impact to his business and he has requested assistance from the City.
During the past event season, the Police Department experienced a drastic increase in the number of unpermitted food and merchandise vendors within the immediate footprint of large-scale stadium events. This increase has caused several health and safety concerns which are outlined below.
As currently written, the City Code and regulations do not align with recently adopted State legislation related to sidewalk vending. Consequently, the City’s ability to address these health and safety concerns or the issues raised by Mr. Gibbins is constrained.
The purpose of this report is to provide the City Council with an overview of the current regulatory environment including the two pieces of recently adopted legislation that shape the options to regulate street vending on sidewalks as well as in the public right-of-way. In addition, this report provides policy options for the Council to consider that will, hopefully, better position the City to address the concerns raised by Mr. Gibbins as well as the health and safety concerns that have been identified by staff.
DISCUSSION
Definition of Sidewalk Vending
Pursuant to Senate Bill 946, a “sidewalk vendor” is defined as a person who sells food or merchandise on a public sidewalk or other pedestrian path with a non-motorized conveyance (e.g., pushcart, stand, display, pedal driven cart, wagon, showcase, rack, etc.). A sidewalk vendor can be either roaming or stationary.
Recent Legislation - Senate Bill 946
On September 17, 2018, the Governor approved Senate Bill 946 (Attachment 1) referred to as the “Safe Sidewalk Vending Act”, which imposes restrictions on the manner in which a local agency may regulate and enforce sidewalk vending within its jurisdiction by ordinance (these restrictions are commonly referred to as “time, place and manner” restrictions). This new law went into effect on January 1, 2019 and addresses sidewalk vending in four contexts: (1) generally, (2) in parks, (3) within the vicinity of farmers’ markets and swap meets, and (4) within temporary special permit areas.
The City Attorney’s Office issued a memo on January 11, 2019 to the Chief of Police and Director of Parks and Recreation addressing SB 946 and its impact on various portions of the City Code (Attachment 2). With the passage of SB 946, certain noted portions of the City’s existing Code became unenforceable or require modifications to reflect the intent of SB 946, including:
• Chapter 5.05 regulates door-to-door and place-to-place peddling and solicitation. The City Code makes a distinction between sales for immediate delivery (peddling) and for future delivery (solicitation), but SB 946 does not. Under Article I, peddlers and solicitors must obtain a permit for “peddling activities.” To obtain a permit, vendors are required to submit an application with personal identifying information, criminal history, fingerprints, County health inspections, pay fees and wear City-issued identification. In addition, Article II regulates solicitation from vehicles and mobile units, including but not limited to prohibiting selling or peddling of any articles at any place on any public street, sidewalk, right-of-way, public park or other public space for a period of time exceeding ten minutes within any two-hour period or within 500 feet of a school property.
• Chapter 12.05 restricts a person from obstructing sidewalks from the free passage of pedestrians, including doing so by annoying or molesting persons passing by. It does not provide any exception for those selling, or attempting to sell, food or merchandise.
• Title 9 prohibits individuals from bringing into “any portion of the parking areas” around the Stadium, and “perimeter sidewalk,” any food, goods or merchandise “for the purposes of sale or barter”.
• In addition, the City Code contains sections addressing enforcement, including the discretion to prosecute violation of code with civil, criminal or administrative penalties (§§ 1.05.070, 5.100.010), which are specifically preempted by SB 946.
Prior to the adoption of SB 946, local agencies (including cities and County Health Departments) could confiscate a vendor cart if health violations were committed, had prosecutorial discretion to enforce by issuing administrative or misdemeanor citations and could revoke a vendor permit after four (4) repeat offenses.
Under SB 946, criminal penalties are prohibited and administrative fines are limited pursuant to an “ability to pay” determination that reduces fines to 20% of the full fine if the violator earns less than 125% of the federal poverty line or receives certain means-tested government benefits. While a regulatory agency retains the right to revoke a permit under SB 946, a violator may be offered community service in lieu of the payment of fines and local agencies can either waive fines or make offers of alternative disposition.
A regulatory agency cannot require:
1. A vendor to operate within specific parts of the public right-of-way.
2. A vendor to obtain consent or approval from any non-governmental entity or individual before he/she can sell food or merchandise.
3. A vendor to operate only in designated neighborhoods or areas. Stationary vendors can be prohibited in exclusively residential zones; or
4. Restrict the total number of vendors permitted to operate with a local jurisdiction.
The only exceptions to these restrictions are if there are “directly-related, objective health, safety or welfare concerns”. If these exceptions exist, local agencies may adopt requirements regulating time, place and manner restrictions including, but not limited to:
• Limitations on the hours of operation (so long as they are not unduly restrictive)
• Requirements to maintain sanitary conditions
• Requirements necessary to ensure compliance with the federal Americans with Disabilities Act and other disability access standards
• Requirements to obtain a permit for sidewalk vending and a valid business license
• Requirements to possess a valid California Department of Tax and Fee Administration seller’s permit
• Requirements for mitigation for littering or dumping
• Requirements for compliance with other generally applicable laws
• Requirements to submit certain information on his or her operations
• Prohibition of stationary sidewalk vendors in areas zoned for only residential uses
SB 946 separately addresses regulation of sidewalk vending in parks owned or operated by a local authority. Local authorities cannot prohibit a vendor from selling food or merchandise in a park; except when there is a signed concession agreement that provides exclusive rights for the sale of food or merchandise. In this case, stationary vendors can be prohibited. In addition to the exceptions related to health and safety, local authorities may also impose restrictions necessary to ensure the public’s use and enjoyment of natural resources and recreational opportunities as well as restrictions necessary to prevent undue concentration of commercial activity that would unreasonably interfere with the scenic and natural character of the park.
With respect to sidewalk vending at Farmer’s Markets and/or Swap Meets, a local authority may prohibit vendors in areas located within the immediate vicinity of a permitted certified farmers’ market or a permitted swap meet.
The final area affected by SB 946 relates to “temporary special permit areas”. A temporary special permit is a “permit issued by the local authority for the temporary use of, or encroachment on, the sidewalk or other public area”. This includes but is not limited to: 1) an encroachment permit; 2) a special event permit; or 3) a temporary event permit for purposes including but not limited to filming, parades or outdoor concerts. In this instance, a local authority may restrict vendors in the immediate vicinity of an area designated for a temporary special permit for the duration of the temporary permit.
Recent Legislation - Senate Bill 972
On January 1, 2023, Senate Bill 972 also went into effect (Attachment 3). SB 972 amends the California Retail Food Code to allow for non-potentially hazardous foods prepared in a cottage food operation to be served from a mobile food facility (such as a cart, wagon, rack, or other non-motorized conveyance). The code requires that these facilities meet certain health and safety standards. Mobile food operation with less than 25 square feet of display area or that sell only prepackaged, non-potentially hazardous foods or whole uncooked food are exempt. Moreover, this legislation requires that local agencies establish pre-approved standard plans for facilities intended to serve as compact mobile food operation. Plans for individual units are not be required. Facilities with non-conforming structural conditions would be approved if those conditions do not pose a public health hazard. While facilities require a valid permit, this bill reduces the fees that can be collected, and violations can only be punishable by administrative fine.
Like the provisions in SB 946, fines are subject to the “ability to pay” determination and can be reduced or waived. If eligible for a reduction, the fine collected cannot exceed 20% of the full cost of the administrative fine. While the California Constitution requires the state to reimburse local agencies for certain costs mandated by the State, this bill eliminates the requirement for reimbursement.
Health and Safety Concerns
In addition to the need to align to State law, staff has identified a number of health and safety concerns associated with vendors on sidewalks, public right-of-way, in City parks, and on private property (e.g., parking lots) that should also be addressed. These concerns include:
• Unsafe food preparation and handling practices
• Inadequate waste disposal
• Traffic congestion
• Encroachment of public spaces and restricted access to sidewalks and public right of way
• Vulnerable populations subjected to street crimes
• Labor / employment law violations
The area around Levi’s Stadium is particularly sensitive given the number and size of major events, the impact to surrounding neighborhoods and the inherent opportunities to attract a large volume of vendors. Additional concerns include:
• Location of sidewalk vendors not incorporated into the City’s emergency evacuation plan or traffic management plan
• Propane tanks that could endanger the public if ignited in highly populated areas
• Hot greasy cook tops without structures for safety clearances and required fire extinguishing devices
• Massive groups congregating, particularly near gates, bridges, parking lots, crosswalks, sidewalks, etc.
• Lines causing people to interrupt ADA paths and pedestrian, bicyclist and pedicab traffic
• Intoxicated attendees causing fights connected with massive groups traveling through narrow pathways
• Sizeable amounts of cash being exchanged and the potential for crime
• Sanitary issues, including but not limited to garbage, access to water for hand washing, etc.
• Merchandise sales of counterfeit, unsafe or inappropriate items (e.g., flares)
• Alcohol being sold without Alcoholic Beverage Control permits
• Concerns of legitimate employment practices
Policy Options
The concerns expressed by Mr. Gibbins are indicative of a larger policy discussion regarding the City’s interest in regulating street vending. As noted above, there are a variety of health and safety concerns that should be considered - especially in the area around Levi Stadium. Moreover, the State legislation has resulted in a City Code regulatory environment that is not enforceable as currently written, and therefore, requires modification.
To that end, staff is seeking policy direction from the Council on three (3) possible alternatives:
1. Prepare a temporary ordinance amendment and permit process for stadium event days that would define areas where sidewalk vending could not occur due to health and/or safety concerns, within a to-be-determined stadium footprint. The Ordinance would also contain provisions to prohibit vending in parking lots associated with the stadium event. The temporary Ordinance would be established for a pilot period of August 2023 to January 2024 to evaluate impacts. At that time, the Police Department would return to the City Council with recommendations for implementation for the 2024 concert and NFL seasons, as well as how the Ordinance may need to be amended to apply in other areas of the City such as City parks.
Pros: Addresses health and safety concerns along sidewalks and public right of way as well as in parking lots surrounding the Stadium. May provide greater disbursement of sidewalk vendors within the defined footprint. Defines area for ease of enforcement and establishes a safety perimeter to ensure access in the event of evacuation or other safety measures. Complies with SB 946.
Cons: Does not address sidewalk vending in other parts of the City including City parks.
2. Direct staff to develop an Ordinance amendment to address sidewalk vending City-wide to align City Code with current sidewalk vending legislation. In this scenario, vending would be regulated and enforced throughout all areas of the City.
Pros: Allows for a comprehensive approach to the health and safety issues related to sidewalk vending across the City.
Cons: Given the complexity of a citywide approach, it is unlikely that a comprehensive amendment can be completed prior to the 2023 concert and NFL season. Implementation will have a significant impact on City Department workloads, especially the Police and Parks and Recreation Departments.
3. Direct staff to eliminate all unenforceable City Code sections related to sidewalk vending (and include minor modifications to enforceable provisions of the code as necessary), but generally defer to State law on the matter, without any meaningful local controls.
Pros: Complies with SB 946 and 972.
Cons: Does not address health and safety concerns or address Mr. Gibbins’ concerns related to the lack of enforcement of unpermitted vendors and negative financial impact.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(b)(5) in that it is a governmental organizational or administrative activity that will not result in direct or indirect changes in the environment.
FISCAL IMPACT
There is no fiscal impact related to this report. Depending on the option selected by Council, there will be costs associated with the design and implementation of a permitting process, enforcement, on-going communication with vendors, etc. Staff will return with those estimated costs based on the Council’s direction on a preferred option.
COORDINATION
This report was coordinated with the Parks and Recreation Department, Police Department, City Attorney’s Office, and City Manager’s Office
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email clerk@santaclaraca.gov <mailto:clerk@santaclaraca.gov> or at the public information desk at any City of Santa Clara public library.
RECOMMENDATION
Recommendation
Direct staff to proceed with Option #1 (pilot program in the area of Levi’s Stadium from August 2023 through January 2024, with the Police Department returning to City Council with recommendations for implementation for the 2024 concert and NFL seasons, as well as how the Ordinance may need to be amended to apply in other areas of the City, such as City parks).
Staff
Reviewed by: Pat Nikolai, Chief of Police
Approved by: Office of the City Manager
ATTACHMENTS
1. Senate Bill 946
2. City Attorney’s Memorandum dated January 11, 2019
3. Senate Bill 972
4. City Code Section 3.40
5. City Code Section 5.05
6. City Code Section 8.10
7. City Code Section 12.05
8. City Code Title 9