REPORT TO COUNCIL
SUBJECT
Title
Action to Approve Introduction of an Ordinance Amending the Santa Clara City Code to Create a Limited-Term Pilot Project Regulating Vending Upon Certain Public Sidewalks and Pedestrian Paths Surrounding Levi’s Stadium on Event Days Including the Waiver of Certain Business and Permit Fees
Report
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
Enhance Community Engagement and Transparency
EXECUTIVE SUMMARY
SB 946 prohibits California cities and counties from banning sidewalk vendors from operating on public sidewalks or other pedestrian pathways and prohibits cities from regulating sidewalk vendors unless cities establish a permitting system that is consistent with the provisions of SB 946. SB 946 also requires that any restrictions placed on sidewalk vendors be directly related to objective health, safety or welfare concerns. Local jurisdictions that wish to regulate sidewalk vending are required to first adopt a program with regulations consistent with SB 946. In accordance with Council direction at the April 18, 2023 meeting, staff presents a limited term pilot program ordinance regulating sidewalk vending on certain enumerated streets surrounding Levi’s Stadium on event days.
BACKGROUND
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 in this report.
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 is limited.
Council requested additional information on this topic, including policy options to amend regulations related to street vending. On April 18, 2023 the Police Department brought forth Report to Council #23-211 (Attachment 1) that detailed 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 (SB 946 and SB 972, Attachments 2 and 3 respectively) as well as policy options for Council consideration to better position the City to address the concerns.
At this meeting, the Council voted unanimously to approve staff recommendation #1 to prepare a temporary ordinance amendment and permit process for stadium event days that would define areas where sidewalk vending could not occur (the pilot program footprint) due to health and/or safety concerns.
DISCUSSION
As a result of the requirements under SB 946, the existing City Code provisions related to peddlers and solicitors were largely unenforceable as to such activity occurring on sidewalks and pedestrian paths. This was explained in detail in the City Attorney’s Memorandum dated January 11, 2019 (included within Attachment 1). Under the proposed pilot program, certain enforcement mechanisms will again become available within the pilot program footprint, but enforcement options outside the pilot program footprint will remain severely limited.
In order to make the pilot program enforceable, to be in compliance with SB 946, and to encourage vendor participation in the program, staff is recommending amendments to two chapters of the Santa Clara City Code, as well as modifications to the permitting process and associated business/permit fees. Each of these amendments and operational adjustments are intended for the pilot period within the stadium operating areas only and will establish new time, place, and manner restrictions within the pilot project footprint that are directly related to objective health, safety and welfare concerns.
Direction from City Council on April 18, 2023, requests staff “prepare a temporary ordinance amendment and permit process for stadium event days that would define areas where sidewalk vending should 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 September 2023 to January 2024 to evaluate impacts. At that time, staff 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.”
Based on previous Council direction, the intent of this report is to recommend the following:
• Amendments to various sections of the Santa Clara City Code (enforcement will remain paused in all other areas of the City in the manner in which it was recommended by the City Attorney’s Office in 2019)
• A stadium footprint for Ordinance implementation
• Potential partnerships with stakeholders
• A preliminary enforcement plan
• Factors for Council consideration regarding future City-wide ordinance amendments
In addition, this report will discuss the following issues:
• A plan to modify the existing permitting process and update the required forms for dissemination online
• The Police Department’s communication plan to vendors ahead of implementation and at events during the pilot period
• Partnership with other enforcement agencies such as County of Santa Clara Consumer Protection Division and California Alcoholic Beverage Control (ABC)
Proposed Amendments to Chapter 5.05 and Section 9.05.165 of the City Code
Staff has prepared the proposed Ordinance amendments that regulate both stationary and roaming sidewalk vendors, including revisions of time, place, and manner provisions to the extent allowed by SB 946:
• Modify Chapter 9.05.165 (prohibited activities in parking facilities adjacent to the Stadium): subsection (m) is amended to indicate that the prohibition on peddling on the perimeter sidewalk of the stadium is subject to the terms and requirements of the pilot program
• Amend Chapter 5.05 (solicitors and peddlers) to add a new Article IV governing the pilot program, which includes the following:
o Prohibition of sidewalk vending activity on specified segments of sidewalks/paths (the pilot program footprint) surrounding the Stadium for particular time periods on event days
o Outside of the restricted hours, vending activity within the pilot program footprint shall be allowed, subject to certain regulatory requirements, such as:
§ Obtaining a permit from the City
§ Proof of health permits and food handler training for sale of food or beverage
§ Sale of alcoholic beverages is prohibited
§ Vendors shall not operate in such a manner as to impair disability access
§ New administrative penalties structure
Recommended Pilot Project Footprint
With due consideration given to the Stadium Traffic Management Operations Plan (TMOP), taken together with the Police Department’s experience with vehicle traffic patterns at the Stadium, as well as event attendee tendencies to use light rail (Valley Transportation Authority/VTA, heavy rail (Caltrain), bicycle, pedicab, walk and/or other forms of transportation to Levi’s Stadium, staff is recommending the following areas where sidewalk vending should not occur due to identified health and/or safety concerns:
• Tasman Drive (from Great America Parkway to Calle de Sol)
• Tasman Drive eastbound off-ramp to Star and Stripes Drive (often referred to as a slip-ramp)
• Tasman Drive stairways to Stars and Stripes Drive
• Great America Parkway (from Bunker Hill Drive to Patrick Henry Drive)
• Stars and Stripes Drive (from the Tasman Drive eastbound off-ramp to Bill Walsh Way).
• San Tomas Aquino Creek Trail (from Great America Parkway to Agnew Road)
• Old Glory Lane east of Great America Parkway
The attached map (Attachment 4) details the recommended pilot program footprint.
In turn, the following areas have been identified as viable spaces for sidewalk vendors to conduct business on event days, subject to the regulatory requirements outlined in Chapter 5.05 of the City Code (with a modified permitting process in accordance with SB 946):
• Tasman Drive west of Great America Parkway and east of Calle de Sol
• Great America Parkway north of Bunker Hill Lane and south of Patrick Henry Drive
• Old Glory Lane west of Great America Parkway
• Old Ironsides Drive
See the section titled Community Stakeholder/Partnerships for added details about a coordinated approach to vendor communication and conflict, rules and regulations, booth/stall assignment and manage risks within these dedicated areas.
Health, Safety and Welfare Concerns
Based upon the Police Department’s experience with vending occurring around the Stadium on event days, the Department has determined that the restrictions set forth above are necessitated by the following health, safety and welfare concerns:
• Creating traffic congestion by customer queues extending into driving lanes, as well as disrupting bicycle and pedicab traffic
• Vending carts and customer queues restrict the ability of other pedestrians and disabled persons to pass on the sidewalk
• Inadequate waste disposal, causing potential pollution as well as increased tripping/slipping dangers in the context of a large, highly dense, pedestrian group
• Location of sidewalk vending carts and the associated queues are not incorporated into the traffic management and operations plan
• Use of propane tanks on portable carts without security measures is particularly dangerous in the context of a large, highly dense, pedestrian group
• Hot greasy cook tops without structures for safety clearances and required fire extinguishing devices
• Intoxicated attendees causing fights connected with massive groups traveling through narrow pathways
• Merchandise sales of unsafe or inappropriate items (e.g., flares) that are particularly dangerous in the context of a large, highly dense, pedestrian group
• Alcohol being sold to Stadium patrons without Alcoholic Beverage Control permits, particularly in situations in which Stadium halts alcohol sales prior to the conclusion of the event for safety purposes
• Unsafe food preparation, storage, and handling practices, including lack of hand washing facilities
City-wide there are also concerns about labor / employment law violations and vulnerable populations being subject to street crimes. These concerns have and will continue to be raised with partner agencies (e.g., County of Santa Clara Consumer Protection Division) concurrent with the implementation of the pilot program if approved.
According to the proposed Ordinance, sidewalk vendors would not be permitted in the pilot project footprint from the time Tasman Drive is closed to the public (generally 1:30 a.m. on event day) through 2-hours following the conclusion of the event to be consistent with other event-specific needs or one full calendar day whichever is less.
Modified Permitting Process and Proposed City Fee and Business Tax Waivers
The Police Department has several responsibilities related to the oversight of businesses regulated by City, State and Federal laws such as inspections, permits, annual renewals, investigating complaints against the businesses to ensure full compliance with the appropriate laws and regulations. As it relates to activity on Levi’s Stadium event days the regulated businesses include taxicab drivers, pedicabs, solicitors and peddlers, mobile food trucks, etc.
Each regulated business type has different requirements. Currently, a solicitor/peddler permit encompasses mobile food trucks, ice cream trucks, push carts, solicitors, peddlers, etc. Due to SB 946’s carve-out of non-motorized sidewalk vending from other types of peddler businesses, a new application will need to be drafted to take into consideration the guidelines set forth by the legislature including limitations on the personal information that may be collected. Compliance with generally applicable state laws is still required, as is compliance with the requirements of other applicable state and local agencies (such as the County Health Department).
In addition, under SB 946 basic City fees can still be required. The Adopted 2023/24 Municipal Fee Schedule rates for such fees applicable to sidewalk vendors are as follows:
|
Description of Fee, Rate or Charge |
Adopted 2023/24 Fee |
|
Fingerprinting LiveScan rolling service fee (one-time) |
$66 |
|
City of Santa Clara Business License Tax |
$45 per employee |
|
Solicitor/Peddler company application |
$349, plus LiveScan fees |
|
Solicitor/Peddler employee application |
$149, inclusive of LiveScan fee |
|
Solicitor/Peddler company or employee renewal |
$149 |
Based on the FY 23/24 fees, and how such requirements have been applied in the past, the following examples are intended to illustrate the potential costs:
|
Initial Process |
Sole Proprietor |
Company with Employee(s) |
|
Permit Application |
$349 |
$349 for the company, plus $149 per employee |
|
LiveScan fingerprinting |
$66 |
$66 for the owner |
|
Business License Tax |
$45 |
$45 for the owner, plus $45 per employee |
|
TOTAL |
$460 |
$460, plus $194 per employee |
|
|
|
|
|
Renewal Process |
Sole Proprietor |
Company with Employee(s) |
|
Application Renewal |
$149 |
$149 for the company, plus $149 per employee |
|
Business License Tax |
$45 |
$45 for the owner, plus $45 per employee |
|
TOTAL |
$194 |
$194, plus $194 per employee |
*The above charges do not include any third-party fees or costs (e.g., insurance, Health Department permit etc.) that are required to obtain a City of Santa Clara Solicitor/Peddler permit
For the purposes of the pilot program, staff recommends requiring all vendors that desire to operate at Stadium events to obtain applicable licenses and permits, including LiveScan background checks. However, in order to encourage regulatory compliance, staff also recommends taking the step of waiving all City solicitor/peddler fees and taxes for such vendors during the pilot program period operating solely within the pilot program footprint.
To make the City general fund whole, Stadium Authority Staff plans to allocate $30,000 of Stadium Authority funds support this initiative. If approved, the City will waive certain solicitor/peddler fees and taxes on a first come first service basis until the $30,000 has been expended. Vendors would still be responsible for any third-party fees or costs (e.g., insurance, Health Department permit etc.) that are required to obtain a City of Santa Clara Solicitor/Peddler permit; it is not the intent of this proposal to waive or subsidize any third-party fees or costs. Vendors wishing to operate on City-wide sidewalk locations outside the pilot program footprint will still be required to pay all permitting fees and charges.
Program Implementation
A number of actions will be required in order to implement the pilot program. Key program elements include (1) a communications plan, (2) an internal enforcement plan, (3) coordination with other enforcement agencies, (4) exploration of community partnerships, and (5) information gathering and reporting. Each of these key elements are described in more detail, below.
1. Communications Plan
Following Council action, the staff will disseminate information regarding the pending changes on the following existing resources:
• City and Police Department website
• Police Department social media platforms (e.g., Facebook, GovDelivery, Instagram, Nextdoor, Twitter)
• Written notice to existing sidewalk vendors with valid permits
In the early phase of program implementation, staff will also create and distribute flyers in multiple languages to educate and engage sidewalk vendors on program requirements.
Similarly, staff will coordinate with Levi’s Stadium to create and post signage in multiple languages to be posted onsite according to the approved pilot program footprint.
2. Enforcement Plan
Levi’s Stadium has a Code of Conduct and an extensive security plan with an escalating scale of enforcement (e.g., guest services, private security, law enforcement) for Code of Conduct violations to ensure all guests enjoy a positive event day experience. Private security, the Santa Clara Police Department and its local, State and Federal law enforcement personnel assist with implementation of this layered security plan.
While the Police Department will be responsible for enforcement of violations of the amended Code sections, staff anticipates the sidewalk vendor management program will help mitigate many of the anticipated challenges. A progressive enforcement model will be employed, including a community-oriented approach to the initial guidelines, education and violation admonishments, followed by enforcement for non-compliance or recurring violations.
For vending violations within Stadium parking lots, the existing Levi’s Stadium Code of Conduct and associated Code sections within Chapter 9, are currently enforceable.
Staff recommends a similar progressive approach to conducting enforcement under this pilot project in the parking lots. In this case, it is recommended the approach be as follows:
• Private security (Levi’s Stadium) for violations on Stadium property or Stadium parking lots
• Non-sworn personnel/Code Enforcement)
• Law Enforcement (sworn peace officer personnel)
This approach is also designed with an emphasis on initial education and violation admonishments, followed by progressive enforcement for non-compliance or recurring violations. The approach is intended to efficiently utilize staffing resources, as well as mitigate potential tension that may arise from enforcement contacts with vendors. Instead, private security and non-sworn personnel will explain the City Code, and issue warnings for violations with an opportunity to correct the violation by relocating to an area outside of the prohibited locations. Continued non-compliance could result in an administrative citation being issued.
Doing so will increase expenses, at least in the short term, associated with creating a “team” to educate sidewalk vendors on the regulations and handle enforcement. The Santa Clara Stadium Taxpayer Protection and Economic Progress Act, commonly referred to as Measure J, requires all costs related to stadium operations to be reimbursed to the City. Sidewalk vending enforcement costs in the pilot program area would be subject to repayment under Measure J.
The new statute was expressly designed by the State Legislature to decriminalize sidewalk vending. A violation of the pilot program ordinance is punishable only by a prescribed administrative fine penalty structure or permit revocation. Additionally, the new law requires local jurisdictions to offer an ability-to-pay determination to individuals who are issued a violation. The administrative fines for violation of the pilot program (such as vending in a prohibited area) are as follows:
• one hundred dollars ($100) for a first violation
• two hundred dollars ($200) for a second violation within one year of the first violation
• five hundred dollars ($500) for each additional violation within one year of the first violation
• a local authority may rescind a permit issued to a sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations
The violation of failing to obtain a permit is punishable by stricter penalties as follows:
• two hundred fifty dollars ($250) for a first violation
• five hundred dollars ($500) for a second violation within one year of the first violation
• one thousand dollars ($1,000) for each additional violation within one year of the first violation
3. Partnership with County of Santa Clara Health Department and California Alcoholic Beverage Control (ABC)
Staff feels that a key element to program success will be the engagement of other interested, law and safety enforcement agencies to assist with the effort. The two main agencies of interest are the ABC and the Santa Clara County Health Department.
ABC has enforcement authority for alcohol sales apart from SB 946. On occasion, ABC representatives will attend a stadium event to issue warnings and/or citations to anyone illegally selling alcohol or setting up a bar for alcohol sales.
Meanwhile, the Police Department will again reach out for collaboration with the County of Santa Clara for health permit and food safety enforcement. The County has much more substantial powers than the City and is not limited by SB 946. In recent years, however, County personnel resources have prevented their ability to have a presence at every Levi’s Stadium event.
Community/Stakeholder Partnerships
Leading up to and during the pilot program period, staff will also explore other possible partnerships with interested stakeholders. ManCo and neighborhood interests are key of course, but efforts will also be directed at the vendors themselves.
Recent changes in State law have enhanced the entrepreneurial spirit associated with any sidewalk vendors. As a result, partnering with our business-persons utilizing stadium events as part of their business model will be important. One example of this would be to explore the creation of an umbrella or cooperative structure within each of the approved sidewalk vending areas to bring people together with a shared goal while combating health and safety concerns to mitigate risks (e.g., ADA compliance, food-related illnesses, vendor relationships, injuries to people, damage to property, employment and labor law risks, etc.). This community-oriented approach, similar to how some farmer’s markets are operated, would bring together individuals who want to efficiently sell their products and be part of the decision-making process in doing so. This umbrella organization could also serve as the point of contact for adjacent properties and brick and mortar businesses.
Establishment of such an entity and its charter members will take some time. As a result, staff is recommending the sidewalk vendor management be implemented as Phase 2 of this overall process.
Information Gathering and Reporting
Throughout the program, staff will be observing and gathering relevant information in order to assist staff and the Council to evaluate program successes, failures, and possible improvements. Types of information to be gathered and reported out at the end of the process shall include, at a minimum, the following:
• Number of vending permits issued and fee waivers issued
• Number of vending permits denied or revoked
• Number of written warnings and citations issued as well as the administrative fines collected
• Expenses to implement the permit program and conduct enforcement of the regulations
• Proposed changes to the pilot project footprint, City Code, and other regulations as a result of the pilot program experiences
• Discussion of potential costs associated with a longer-term program
Next Steps
Pending Council approval of the staff recommendation, a second reading of the Ordinance will take place at the August 22, 2023 Council meeting. If the ordinance is adopted on August 22, 2023, it will become effective with initial enforcement efforts commencing upon the effectiveness of the ordinance 30 days thereafter. Doing so, allows for communications and permitting compliance efforts during the pre-season NFL games with the program going “live” as early in the regular season as possible.
The pilot program will continue through January 2024. Staff intends to report to the Council on the progress of the program, and to provide a full report at the conclusion of the program (estimated Spring 2024). At that time, staff may offer further Ordinance amendments to modify or extend the program with respect to Stadium events, and/or to expand the program into other areas of the City, including but not limited to, City parks.
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 will be Police Department and Community Development staff time associated with implementing and enforcing new permit requirements for sidewalk vendors, establishing a sidewalk vendor management program and developing a communication plan to vendors ahead of implementation and at events during the pilot period. The most significant impact from a staffing perspective will be conducting enforcement on Levi’s Stadium event days. At this time, there are approximately 8 major events scheduled at Levi’s Stadium during the pilot program; additional event(s) may be added through January 2024.
The staff recommendation includes requesting up to $30,000 in Stadium Authority funds to support the permitting initiative. This should make the City general fund whole with respect to any waived fee or tax amounts. This funding proposal will be administered by the Stadium Authority Executive Director out of existing Stadium Authority funds. If a Stadium Authority appropriation is required, a budget amendment will brought back to the Stadium Authority for its consideration and approval at the next scheduled Stadium Authority meeting.
The Stadium Manager has advised that Stadium will enforce vending regulations on Stadium grounds and parking lots. As such the Stadium Manager will be handling signage, and the corresponding costs on Stadium grounds and parking lot and will produce signs for public right-of-way (ROW) as appropriate.
COORDINATION
This report was coordinated with the Community Development Department, 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.
Concurrent with the adoption this Ordinance, Stadium Manager plans to implement a companion program on Stadium grounds and in stadium parking lots. City staff and Stadium Manager will coordinate efforts to communicate with vendors about the implementation of the new stadium rules and the boundaries of the pilot program on City ROW.
RECOMMENDATION
Recommendation
1. Waive first reading and approve introduction of an ordinance amending Chapter 5.05 (Solicitors and Peddlers) and Section 9.05.165 (Activities and Conduct Prohibited in Parking Facilities Adjacent to the Stadium or Parking Facilities Used for Stadium Events) of the Santa Clara City Code to Create a Limited-Term Pilot Project Regulating Vending Upon Certain Public Sidewalks and Pedestrian Paths Surrounding Levi’s Stadium on Event Days Pursuant to SB 946; and,
2. Waive fees and taxes for all required City business licenses and permits, for qualified sidewalk vendors operating at stadium events during the pilot program period (September 21, 2023 through January 31, 2024) on a first come first serve basis in an amount not to exceed $30,000; and authorize the City Manager to develop administrative guidelines to implement the fee waiver program.
Staff
Reviewed by: Pat Nikolai, Chief of Police
Approved by: Jōvan D. Grogan, City Manager
ATTACHMENTS
1. Report to Council 23-211 from the April 18, 2023 City Council meeting, with attachments
2. Senate Bill 946
3. Senate Bill 972
4. Proposed Ordinance
5. Pilot Program Map