Loading...
HomeMy WebLinkAbout2019-02-12; City Council; ; Discuss and introduce if desired a draft ordinance required by a change in state law, which would amend title 8 of the Carlsbad Municipal Code by repealing and replacingCA Review 1..,oc....., ~ CITY COUNCIL ~ Staff Report Meeting Date: February 12, 2019 Mayor and City Council To: From: Scott Chadwick, City Manager Staff Contact: Marissa Kawecki, City Prosecutor/Deputy City Attorney marissa.kawecki@carlsbadca.gov or 760-434-5351 Subject: Discuss and introduce if desired a draft ordinance required by a change in state law, which would amend title 8 of the Carlsbad Municipal Code by repealing and replacing chapter 8.32 to create a sidewalk and food truck vending equipment permit program Recommended Action Discuss and introduce if desired a draft ordinance in compliance with California Senate Bill 946, which would amend title 8 ofthe Carlsbad Municipal Code ("CMC") by repealing and replacing chapter 8.32 (Peddlers, Solicitors, Vendors and Canvassers) to create a sidewalk and food truck vending equipment permit program. Following discussion, staff recommends that the City Council take one of the following actions: (1) Introduce the proposed ordinance for adoption as-is, which would include the repeal of existing CMC chapter 8.32; (2) Revisit the proposed ordinance for introduction at a future Council meeting, after staff conducts community outreach and/or modifies the proposed ordinance as per Council direction; OR (3) Maintain the status quo, leaving the city with no enforceable ordinance against sidewalk vendors and repeal unenforceable provisions in existing CMC chapter 8.32 as part of the ongoing municipal code update. Executive Summary On September 24, 2018, the California Legislature passed Senate Bill 946 (SB 946), which authorizes the statewide governance of sidewalk vendors in all public locations and right-of- ways. The law prohibits California cities from imposing criminal penalties for sidewalk vending activity, and further requires that a city maintain a vending equipment permit or licensing program in order to impose administrative penalties. SB 946 went into effect January 1, 2019. CMC section 8.32.010 currently bans street and sidewalk vending with limited exceptions; it does not "substantially comply" with SB 946, as required under state law. Thus, the city's current ordinance and enforcement scheme is in violation of SB 946. The City Attorney's Office recommends that the entirety of chapter 8.32 be repealed and replaced with a new chapter that comprehensively regulates: (1) sidewalk vending on public property; (2) food truck vending on public property; and (3) certain other sales or solicitations on public property. Although not 1 February 12, 2019 Item #2 Page 1 of 42 required by SB 946, this approach will allow for uniform regulation of sidewalk vending and food truck vending, while maintaining current regulations pertaining to activities such as street fairs. Discussion A. Legislative Intent Sidewalk vending has traditionally been an area with irregular regulation throughout California cities. In recent years, vending from both food trucks and sidewalk conveyances has become extremely popular in larger metro cities, most notably Los Angeles and the San Francisco Bay area. Sidewalk vendors are often part of marginalized and ethnic communities and sell merchandise and food items which are not otherwise readily available. The passage of SB 946 was intended by the California legislature to provide legal protection to sidewalk vendors and standardize sidewalk vending regulation statewide. SB 946 requires that cities allow sidewalk vending on the public right-of-ways. Cities may create a permitting or licensing program for sidewalk vendors to administratively regulate vending, subject to certain exceptions. Acceptable exceptions include prohibiting vending in locations where an exclusive concessions agreement is in effect and the use of "time, place and manner" restrictions that directly relate to objective health, safety or welfare concerns. Unacceptable restrictions include completely banning vending within parks, banning roaming vendors within residential areas or restrictions motivated by a desire to protect pre-existing businesses. Limitations on the hours of operation may not be "unduly restrictive;" in nonresidential areas, the hours of operation limitations may not be more restrictive than those imposed on other businesses or uses on the same street. Local authorities may not cap the overall number of sidewalk vendors in their jurisdiction and may not restrict sidewalk vendors to a designated area, unless directly related to objective health, safety or welfare concerns. B. Current CMC Chapter 8.32 The city's current ordinance pertaining to street and sidewalk vending, codified in CMC chapter 8.32, contains a patchwork of solicitation and food truck guidelines. This chapter is in violation of SB 946 for two reasons. First, it explicitly bans street and sidewalk vending throughout the city, with limited exceptions for activities such as special events. Second, the code does not contain a permitting system for sidewalk vending. Thus, as of January 1, 2019, the city is unable to regulate sidewalk vending unless a revised ordinance with measured time, place and manner restrictions, along with a permitting or licensing program, is adopted. With regard to food truck vending, CMC section 8.32.010 currently allows food truck vendors to operate for 10 minutes in any one place in most areas of the city. Food truck vendors must obtain a permit to lawfully operate in the city. Ice cream trucks are subject to additional regulations. 2 February 12, 2019 Item #2 Page 2 of 42 C. Proposed New Chapter 8.32 Similar to the intent of the State Legislature, the proposed local ordinance recognizes that sidewalk and street vending provide important entrepreneurship and economic development opportunities to low-income and immigrant communities, contribute to a dynamic public space and increase access to desired goods and culturally significant food and merchandise. At the same time, the ordinance carves out certain exceptions to the deregulation of sidewalk vendors in order to protect the health, safety and welfare of the public and the use and enjoyment of public spaces, natural resources and recreational opportunities within the city. Using surrounding cities' street vending ordinances as a model, this proposed ordinance incorporates many available exceptions permitted by SB 946 to provide broad power to regulate and control vending. Sensitive areas such as intersections, schools, beaches and parks contain time, place and manner restrictions on vending due to health, safety, welfare and environmental concerns. The ordinance defines "sidewalk vendor" as "a person who vends food or merchandise using nonmotorized vending equipment or from one's person, upon a public sidewalk or other pedestrian path." "Food truck vendor" is defined as "a person who vends food or beverages using a food truck." "Food truck" means "a motorized vehicle specifically equipped for the sale of food or beverages used for vending purposes." The ordinance will not regulate services, as was the case with existing CMC chapter 8.32. Structurally, the proposed ordinance repeals CMC chapter 8.32 and replaces it with comprehensive regulations for both sidewalk and food truck vendors. Although SB 946 does not require a city to allow food truck vending, the proposed new chapter continues to allow this activity and creates a single set of regulations that apply to both sidewalk and food truck vendors. The heart of the ordinance is the requirement'of a vending equipment permit for any conveyance used for vending purposes (e.g., food trucks, wagons, pushcarts, bikes, etc.). The ordinance also incorporates the city's current business licensing requirements, per CMC chapters 5.04 and 5.08. The ordinance will not affect existing requirements of CMC section 11.32.030, which governs unlawful acts in the city's beaches and parks, including the issuance of park and facility use permits and special event permits required to sell or solicit food, merchandise or services at city parks and beaches (see e.g., CMC subsections 11.32.030(20), 11.32.030(21) and 11.32.030(28)). Parks will continue to issue permits related to the sale of food and merchandise for one-time or short-term events, such as birthday parties and the Oktoberfest celebration in Holiday Park. Vending equipment permit applicants must provide proof of county and state food handler's cards/certifications, a description of proposed merchandise or food to be sold, areas of operation and the names and identities of all individuals involved in vending activities. A sample vendor permit application, to be attached as an addendum to the existing business license application, is attached as Exhibit 4. The Finance Department will be tasked with issuing and renewing business licenses (per the current protocol) and vending equipment permits. The Risk Manager must also review applications for compliance with insurance requirements. The Code Enforcement Department will monitor vendors' business license and vending equipment permit compliance. 3 February 12, 2019 Item #2 Page 3 of 42 D. Comparison of Current and Proposed Vending Ordinance Current Section in CMC Chapter 8.32 8.32.010 Display, sale or storage on public ways prohibited. Current Language A. Except as otherwise provided in this chapter, no person shall display, sell or store any goods or merchandise from any temporary or permanent . display, vehicle, wagon or pushcart upon any public street, alley, highway, parking lot, sidewalk or right- of-way. B. No person shall sell or offer to sell goods or merchandise from any temporary display, vehicle, wagon or pushcart in any commercial zone except as provided in Title 21. If permitted by the provisions of Title 21, a permanent structure, all or part of which is located on a public street, sidewalk, parking lot or easement, may be used for the sale of goods or merchandise, provided that all appropriate permits required by Titles 6, 11, 18 and 21 have been issued. C. No person shall sell or offer to sell goods, merchandise, food or beverages from any vehicle on any portion of any public street, alley, highway, parking lot, sidewalk, or right-of-way within one-half mile of a public school building or school grounds while children are going to or from the school, during opening or closing hours, or during a recess period. D. Subject to subsection C of this section, a person may display or sell food or beverages from a motor vehicle specifically equipped for display or sale of food or beverages, provided that the person has first obtained a permit required by this chapter. A person may stand or park such vehicles for the purpose of selling or offering to sell their food or beverages only at the request of a bona fide purchaser for a period of time not to exceed 10 minutes at any one place. If the person is displaying or selling food or beverages from an ice cream truck, the person must also comply with the provisions in Section 8.32.015 of this chapter. Revision Action Repealed. 4 February 12, 2019 Item #2 Page 4 of 42 8.32.015 Ice Cream Trucks A. The city council finds and declares that motor All provisions integrated into vehicles engaged in vending ice cream and similar proposed sections 8.32.090 and food items in residential neighborhoods can increase 8.32.100. the danger to children, and it is necessary that these vehicles are clearly seen and noticed by motorists and pedestrians to protect public safety. B. As used in this section, the term "ice cream truck" means a motor vehicle engaged in the curbside vending or sale of frozen or refrigerated desserts, confections, or novelties commonly known as ice cream, or prepackaged candies, snack foods, or soft drinks, primarily intended for sale to children under 12 years of age. C. Any ice cream truck shall be equipped at all times while engaged in vending in a residential area with signs mounted on both the front and the rear and clearly legible from a distan<;e of 100 feet under daylight conditions, incorporating the words "WARNING" and "CHILDREN CROSSING." Each sign shall be at least 12 inches high by 48 inches wide, with letters of a dark color and at least four inches in height, a one-inch solid border, · ·and a sharply contrasting background. D. A person may not vend from an ice cream truck that is stopped, parked, or standing on any public street, alley, highway, or public right-of-way under any of the following conditions: 1. If the street, alley, highway, or public right-of- way has posted speed limit of greater than 25 miles per hour. 2. If the street, alley, highway, or public right-of- way is within 100 feet of an intersection with an opposing street, alley, highway, or public right-of- way that has a posted speed limit greater than 25 miles per hour. 3. If the vendor does not have an unobstructed view for 200 feet in both directions along the street, alley, highway, or public right-of-way and of any traffic on the street, alley, highway, or public right-of-way. 5 February 12, 2019 Item #2 Page 5 of 42 8.32.020 The city manager may, from time to time, issue Language kept as-is under proposed Permits for temporary permits providing for the holding of section 8.32.140 "Sidewalk Sales." Promotional Sales 8.32.030 Street Fairs 8.32.040 Entering private property for the purpose of-sale without permission. 8.32.050 Restriction on Hours promotional sidewalk sales, subject to such restrictions as to length of time and other conditions as the city manager deems reasonably necessary for the public health, safety and welfare. The city manager may from time to time issue temporary permits for street fairs subject to such restrictions as to the length of time and other conditions as the city manager deems reasonably necessary for the public health, safety and welfare. No person shall go onto private property within the city for the purpose of selling, offering for sale or soliciting orders for the sale of any merchandise, product, service or thing whatsoever when the occupant of such property has given notice or warned such persons to keep away. A sign posted by the occupant of the property, with the words "no solicitors" or "no peddlers" or other similar words, at or near the front door or primary entrance to a residential structure on private property, shall constitute sufficient notice or warning pursuant to this section. For any property used for a purpose of other than a residential use such notice may be posted, at each public entrance to any structure on the property in any conspicuous location on the property, in such a manner so as to provide reasonable notice of the restriction. No person shall go onto private property for the purposes of commercial or noncommercial peddling, soliciting, vending or canvassing before the hour of 8:00 a.m. or after the hour of 8:00 p.m., except that while the United States is on federally mandated daylight savings time the hours shall be 8:00 a.m. to 9:00p.m. Language kept as-is under proposed section 8.32.150 "Street Fairs." Language kept as-is and moved to proposed new chapter 8.34 "Solicitation" (to be presented to the City Council in a separate ordinance package related to unlawful camping and associated activities). Language kept substantially as-is except the term "vending" has been removed; section has been moved to proposed new chapter 8.34 "Solicitation" (to be presented to the City Council in a separate ordinance package related to unlawful camping and associated activities). "Vending" hours are now regulated by proposed section 8.32.070 "Sidewalk Vending Generally:" "Vending activities may occur between the hours of 8:00am and 10:00pm in industrial and commercial zoned areas and between the hours of 8:00am to sunset in all residential zoned areas." 6 February 12, 2019 Item #2 Page 6 of 42 8.32.060 Business License Required All persons engaged in the business of soliciting, peddling or vending subject to the provisions of this chapter shall obtain a business license pursuant to Chapters 5.04 and 5.08 of this code. Fiscal Analysis Repealed and revised. New language contained in proposed section 8.32.010 "Vending Generally:" "Subject to the provisions of this chapter, every individual engaged in vending is required to acquire a business license from the City Manager or designee pursuant to chapters 5.04 and 5.08 of the Carlsbad Municipal Code prior to vending on any public street, sidewalk or right-of-way." In-house costs to the city's Code Enforcement and Finance Departments, including the Risk Manager, will be incurred in the administration and enforcement of the new permitting program. These costs will be partially offset by vendors' business license and vending equipment permit fees. Current business license fees for mobile vendors are listed at a flat rate of $80. The proposed permit fee can be established and modified as needed by council resolution. At this time, staff recommends no permit fee as per the policy used with analogous permits such as short-term vacation rentals. While it is difficult to predict how this ordinance will change the vending landscape in Carlsbad, staff anticipates that many sidewalk vendors and food truck vendors will begin to operate throughout the city without the required vending equipment permit or license. Staff has concerns that the Code Enforcement Department will not have the manpower to effectively and fairly enforce the proposed ordinance. Staff may return to Council at a later date should there be a demonstrated need to hire additional Code Enforcement staff. Next Steps Upon adoption of this proposed ordinance or an amended version thereof, the city could legally regulate sidewalk and food truck vendors through a new permitting program and the city's existing business licensing program. The City Attorney's Office will train Finance Department staff on the review and processing of vending equipment permit applications,. as well as the administration of the permitting program. The City Attorney's Office will also train Code Enforcement staff and Parks staff on the new vending requirements and enforcement guidelines. Staff will create a map that depicts the allowable sidewalk and food truck vending areas throughout the city. The Code Enforcement Department will also continue to research alternative citation systems to easily and quickly cite violators, such as a mobile device with mobile printing capabilities or carbon copy citation books. Environmental Evaluation (CEQA) CEQA requires analysis of agency approvals of discretionary "projects." A "project" is defined under CEQA as "the whole of an action, whkh has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the 7 February 12, 2019 Item #2 Page 7 of 42 environment." Section 15061(b)(3) of Chapter 3, Title 14 of the California Code of Regulations (the CEQA Guidelines) describes the general rule that CEQA only applies to projects which "have the potential for causing a significant effect on the environment; where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA." Staff opines that the new chapter 8.32 created by this proposed ordinance should be categorically exempt from environmental review pursuant to CE,QA Guidelines section 15061(b)(3). While actions under the proposed regulations may be classified as "projects" under CEQA, nothing in this new chapter or its implementation, either individually and cumulatively, would foreseeably have any significant effect on the environment. The proposed ordinance contains a provision for council to make this required finding (see Exhibit 1, section 8.32.0lO(B) "Purpose and Findings"). Public Notification This item was noticed in accordance with the Ralph M. Brown Act and was available for public viewing and review at least 72 hours prior to the scheduled meeting date. Exhibits 1. Ordinance to repeal and replace chapter 8.32 to authorize a sidewalk and food truck vending equipment permit program in compliance with California SB 946 2. Strikeout of current chapter 8.32 3. Underlined version of new chapter 8.32 4. Sample vending addendum to be added to existing business license application 5. Bill Text-Senate Bill 946 "Sidewalk Vendors" 8 February 12, 2019 Item #2 Page 8 of 42 ORDINANCE NO. CS-346 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING TITLE 8 OF THE CARLSBAD MUNICIPAL CODE BY REPEALING AND REPLACING CHAPTER 8.32 TO CREATE A SIDEWALK AND FOOD TRUCK VENDING EQUIPMENT PERMIT PROGRAM. EXHIBIT 1 WHEREAS, the California State Legislature has added Chapter 6.2 to Part 1 of Division 1 of Title 5 of the Government Code; WHEREAS, section 8.32.010 of the Carlsbad Municipal Code substantially restricts sidewalk vendors' ability to do business in Carlsbad and conflicts with new state law; WHEREAS, the Carlsbad City Council seeks to comply with new state law and recognizes that • sidewalk and street vending provide important entrepreneurship and economic development opportunities to low-income and immigrant communities, contribute to a dynamic public space and increase access to desired goods and culturally significant food and merchandise; WHEREAS, the City Council also seeks to protect the health, safety and welfare of the public and the use and enjoyment of public spaces, natural resources and recreational opportunities within the City of Carlsbad; WHEREAS, the City Council finds that there is a need to regulate the sale of food and merchandise in the public right-of-way and ensure that trash and debris are removed; I WHEREAS, regulations are needed to ensure that street and sidewalk vendors prepare food safely and according to all applicable regulations; WHEREAS, regulations are needed to accommodate vending equipment while safeguarding pedestrian and vehicular movement and access on and near sidewalks and other thoroughfares; WHEREAS, the City Council finds that regulation of sidewalk and street vending benefits the City by promoting orderly commerce; and WHEREAS, the City Council seeks to create a vending equipment permit program that will regulate street vendors in Carlsbad. THEREFORE, the City Council of the City of Carlsbad, California, does ordain as follows: Section 1. The above recitations are true and correct. Section 2. That chapter 8.32 of the Carlsbad Municipal Code is hereby repealed and replaced as follows: 1 February 12, 2019 Item #2 Page 9 of 42 CHAPTER 8.32 VENDING AND SOLICITING SECTIONS 8.32.010 Purpose and Findings 8.32.020 Definitions 8.32.030 Vending Equipment Permit Requirements 8.32.040 Business License Requirement 8.32.050 Release and Indemnification Requirements 8.32.060 Insurance Requirement 8.32.070 Permit Denial and Revocation 8.32.080 Sidewalk Vending Generally 8.32.090 Sidewalk Vending Equipment 8.32.100 Food Truck Vending Requirements 8.32.110 Penalties and Fines 8.32.120 lmpoundment of Vending Equipment 8.32.130 Sidewalk Cafes 8.32.140 Sidewalk Sales 8.32.150 Street Fairs 8.32.160 Standing 8.32.170 Severability 8.32.180 Non-Applicability 8.32.010 Purpose and Findings A. The purpose of this chapter is to establish a regulatory program to comply with California State Senate Bill 946 (Chapter 459, Statutes 2018). This chapter's provisions will encourage micro- business owners to engage in the business and economic community of the City of Carlsbad by removing prohibitions against vending on public sidewalks and right-of-ways, while still maintaining regulations that protect public health, safety and welfare. The time, place and manner restrictions throughout this chapter are necessary to: l. Comply with the Americans with Disabilities Act (ADA) by providing clear and open sidewalks and access to public transportation areas; 2. Successfully provide police, fire and emergency services; 3. Ensure the safe flow of vehicular traffic and pedestrians along public roadways, sidewalks and right-of-ways, particularly along and near high traffic and narrow sidewalks and right-of- ways; 4. Protect natural resources and preserve the utility, natural beauty and recreational value of public spaces throughout the City; 5. Protect public health and safety by ensuring vendors utilize proper sanitation in food handling and preparation; 6. With regard to restrictions on vending in the Carlsbad Village Sea Wall trail area as defined herein, many portions of this trail area are narrow and regularly host a high volume of pedestrians and dogs (on the upper area) traveling in each direction. Restrictions on 2 February 12, 2019 Item #2 Page 10 of 42 sidewalk vending are necessary to protect the public from injury given the Sea Wall area's popularity as a destination for tourists and residents alike; 7. With regard to restrictions on vending in public parks and recreational facilities, these restrictions are necessary to: preserve the public's free use and enjoyment of natural resources and recreational opportunities; prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of these spaces; and ensure the health, safety and welfare of persons engaged in active sports activities and spectators of active sports activities. B. This chapter is found to be categorically exempt from environmental review pursuant to CEQA Guidelines section 15061(b)(3), in that the City Council finds and determines that there is nothing in this chapter or its implementation, either individually or cumulatively, which would foreseeably have any significant effect on the environment. C. Nothing in this chapter shall be construed to affect the existing requirements of Carlsbad Municipal Code section 11.32.030, concerning unlawful acts and the issuing of facility use and special event permits in City parks and beaches. D. Nothing in this chapter shall be construed to affect the requirements of San Diego County Code section 61.201 or Part 7 (beginning at Section 113700) of Division 104 of the California Health and Safety Code as applied to an individual who sells food or beverages. 8.32.020 Definitions For purposes of this chapter the following definitions apply: "Business license" means a license issued by the City of Carlsbad pursuant to Carlsbad Municipal Code chapters 5.04 and 5.08, authorizing an individual to conduct business within City limits. "City" means the City of Carlsbad. "Conveyance" means any wheeled device used to carry persons or property. "Food truck" means a motorized vehicle specifically equipped for the sale of food or beverages used for vending purposes. "Food truck vendor'' means a person who vends food or beverages using a food truck. "Ice cream truck" means a food truck engaged in the curbside vending or sale of frozen or refrigerated desserts, confections or novelties commonly known as ice cream, or prepackaged candies, snack foods or soft drinks, primarily intended for sale to children under 12 years of age. "Pedestrian path" means a paved path or walkway owned by the City or other public entity that is specifically designed for pedestrian travel, other than a sidewalk. "Permittee" means the authorized recipient of a duly issued vending equipment permit. "Residential street" means any street that adjoins one or more single family or multi-family residentially zoned parcel(s). 3 February 12, 2019 Item #2 Page 11 of 42 "Sidewalk" means that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation specifically designed for pedestrian travel and that is owned by the City or other public entity. "Sidewalk Vendor" means a person who vends food or merchandise using nonmotorized vending equipment or from one's person, upon or along a public sidewalk or other public pedestrian path. "Vend" or "vending" means an offer to sell or the sale of goods, merchandise, food or beverages on a public street, alley, highway, parking lot, sidewalk, pedestrian path or right-of-way. "Vending equipment" means any motorized or non-motorized conveyance used for sidewalk or food truck vending purposes including but not limited to: food trucks, pushcarts, pedal-driven carts, wagons, bicycles or any other free-standing conveyance. "Vending equipment permit" means a written City of Carlsbad approval required prior to the use of vending equipment for vending purposes. 8.32.030 Vending Equipment Permit Requirement A. All sidewalk and food truck vendors wishing to utilize a motorized vehicle or non-motorized conveyance for vending, including but not limited to food trucks, carts, wagons, bicycles or any other miscellaneous conveyance, must obtain a vending equjpment permit for each conveyance prior to use on any public street, sidewalk or right-of-way. Permits shall be is~ued by the Finance Director or designee, unless otherwise specified in the Carlsbad Municipal Code, including but not limited to section 11.32.030. B. A vending equipment permit shall be valid for one calendar year from the date of issuance and must be renewed annually. Permits may only be issued for one conveyance and shall not be sold, assigned or transferred. C. To obtain a vending equipment permit, an applicant must submit the following information on a permit application form provided by the City's Finance Department: 1. The name, address and telephone number of the applicant and business owner; 2. Proof of valid, government-issued identification (i.e., driver's license, state identification card, taxpayer identification number, social security card, birth certificate or passport); 3. Description of the type of motorized or non-motorized vehicle or conveyance to be permitted, including license number, make, model, size, signage and design type; 4. The nature of every good, merchandise, food or beverage the applicant intends to sell using the vehicle or non-motorized conveyance; 5. The proposed character, location, days, hours and route of vending operations; 6. Proof of insurance, as required by section 8.32.060 of this chapter; 7. Proof of a valid California Department of Tax and Fee Administration seller's permit that notes the City of Carlsbad as a location or sub-location, which shall be maintained for the duration of the vendor's permit; 4 February 12, 2019 Item #2 Page 12 of 42 8. Proof of a valid San Diego County Health Certificate and San Diego County Food Handlers Card; and 9. Such other information as the City Manager or designee deems reasonably necessary to administer this chapter. D. Each vending equipment permit application shall be accompanied by a non-refundable permit fee as established by resolution of the City Council. 8.32.040 Business License Requirement A. All individuals engaged in vending on any City street, alley, highway, parking lot or right-of-way subject to the provisions of this chapter are subject to the business license requirements contained in chapters 5.04 and 5.08 ofthis code. B. A City business license shall be prominently be displayed at all times on the vendor's person or vending equipment during all vending activities. 8.32.050 Release and Indemnification Requirements A. If the City issues a permittee a vending equipment permit, as a condition of such permit issuance, permittee agrees to waive and release the City and its officers, agents, employees and volunteers from and against any and all claims, costs, liabilities, expenses or judgments including attorney's fees and court costs arising out of any vending activities or any illness or injury resulting therefrom, and hereby agrees to indemnify and hold ha~mless the City from and against any and all such claims, whether caused by negligence or otherwise, except for illness and injury resulting directly from gross negligence or willful misconduct on the part of the City or its employees. B. If the City issues a permittee a vending equipment permit, as a condition of such permit issuance, permittee further must acknowledge that the use of public property is at the sidewalk vendor or food truck vendor's own risk, the City does not take any steps to ensure public property is safe or conducive to the vending activities, and the vendor uses public property at their own risk. 8.32.060 Insurance Requirements All sidewalk vendors and food truck vendors shall obtain and maintain throughout the duration of any permit issued under this chapter any insurance required by the City's Risk Manager. All vendors must provide evidence of any required insurance, including but not limited to commercial general liability insurance, auto insurance and worker's compensation insurance, in a form and with a coverage amount acceptable to the City's Risk Manager based on the size and risk factors of the business. With regard to any commercial general liability insurance policy, the vendor shall name the City as an additional insured, and with a coverage amount to be determined by the Risk Manager according to the size and risk factors of the business. When determining the size of the business and the risk to customers and the general public, the Risk Manager's estimates shall be determinative. The insurance policy required by this section shall not be cancelled, limited or not renewed without 30 days' prior written notice to the City. 5 February 12, 2019 Item #2 Page 13 of 42 8.32.070 Permit Denial and Revocation A. Any false or misleading statements or information provided in a vending equipment permit application shall be grounds for denial of the application and/or imposition of penalties as outlined in accordance with this chapter. B. A vending equipment permit application may be denied if the applicant has had a prior vending equipment permit revoked within the past 36 calendar months for the same vending equipment. C. A vending equipment permit may be revoked for any of the following reasons: l. False information or facts supplied by the applicant upon which the issuance of the vending equipment permit was based; 2. Failure of the applicant to promptly notify the City Manager or designee of any material changes to the facts provided in a vending equipment permit application subsequent to the issuance of a vending equipment permit, including but not limited to lapse of liability insurance; 3. Failure of the applicant to comply with the regulations set forth in this chapter. D. Revocation of a vending equipment permit shall be served in writing no less than 30 days before revocation to the address listed on the initial application or to any subsequent address provided to the City by the permittee. E. Any applicant whose application for a vending equipment permit is denied or whose permit is revoked may appeal such decision to the City Manager or designee by filing a written notice of appeal within 10 calendar days after receipt of the notice of denial or revocation. The City Manager or designee shall review and render a decision on the appeal within 90 calendar days. The decision made by the City Manager or designee shall be final. 8.32.080 Sidewalk Vending Generally A. Vending activities may occur between the hours of 8:00am and sunset in all residential zoned areas and between the hours of 8:00am and 10:00pm in industrial and commercial zoned areas and between the hours of. B. No sidewalk vending of any type shall take place to any individuals traveling within motor vehicles along a public roadway. C. A sidewalk vendor shall not vend on any exclusively residential street for longer than 60 minutes at any given time. D. No sidewalk vending of any kind shall take place in the following locations: l. In the public right-of-way or any area that blocks pedestrian or vehicle access; 2. Any public property that does not meet the definition of a sidewalk, including but not limited to any alley, beach, pier, square, street, street end or parking lot; 3. Within 50 feet of another sidewalk vendor; 4. Within 18 inches from the edge of a curb; 5. Any location that obstructs traffic signals or regulatory signs; 6 February 12, 2019 Item #2 Page 14 of 42 6. Within 15 feet of any intersection, driveway or building entrance, or within any space designed for vehicular parking; 7. Within 15 feet of any fire hydrant or fire escape; 8. Within 100 feet of any vehicle entrance of any fire station, police department, hospital or any other structure involved in health and safety emergency matters; 9. Within 15 feet of any loading zone, bus stop, parking space or access ramp designed for persons with disabilities; 10. Within 10 feet of an outdoor dining or patio area; 11. Within 500 feet of a permitted special event or street fair; 12. Within one-half mile of a public school building or school grounds while children are going to or from the school, during a recess period or within 30 minutes before or after the school's opening or closing hours; 13. Within 500 feet of high-traffic landmarks and venues, as determined by the City Manager or designee and published in an Administrative Order, which shall include justification that such restrictions are directly related to objective health, safety or welfare concerns; 14. On any portion of the Carlsbad Village Sea Wall trail, which extends alongside Carlsbad Boulevard and adjacent to the beach, between the cross streets of Pine Avenue and Tamarack Avenue. This restriction on vending shall include both the upper and lower portions of the Sea Wall trail. E. Vending activities in public parks and recreational facilities must also comply with the following: 1. Vending within public parks or recreational facilities is allowed only upon or alongside sidewalks or other paved or marked pedestrian pathways. Outside of these aforementioned areas, vending shall not take place on sand, dirt, grass or on any space which would obstruct, damage or otherwise adversely affect the public's use and enjoyment of natural resources and recreational opportunities, or contribute to an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park. 2. Vending activities that adversely affect the health, safety and welfare of persons engaged in active sports activities and spectators of active sports activities are prohibited. 3. Sidewalk vending activities lasting 10 minutes or longer in duration shall not be permitted within any area of a public park if the park operator has signed an agreement for concessions that exclusively permits the sale of food or merchandise by a specified concessionaire. 4. A valid park and facility use permit or special event permit obtained pursuant to Carlsbad Municipal Code section 11.32.030 may waive these requirements for limited engagements or events. 7 February 12, 2019 Item #2 Page 15 of 42 8.32.090 Sidewalk Vending Equipment A. Notwithstanding any specific requirements of this section, no sidewalk vendor shall use vending equipment in such a way as to endanger the safety of person or property or to cause a public or private nuisance, including but not limited to the use of an open flame. B. All non-motorized vending equipment including push carts, wagons, pedal carts or bikes shall not exceed six feet in length and four feet in width. C. Vendors are responsible for ensuring that the 10-foot area immediately surrounding the vending space is kept clean and free of trash and debris associated with their vending operation. D. Vendors are forbidden from using sound-making devices in conjunction with vending, including but not limited to loudspeakers, public address systems, bells, chimes or other noisemaking devices. E. Vendors are forbidden from erecting freestanding structures adjacent to vending activities, including but not limited to signs, umbrellas, ice chests, chairs, tables or benches. F. No vending equipment shall be attached to or make contact with any utility pole, street sign, bus stop, trash can, traffic pole or any other public structure. G. No vending equipment or merchandise shall be left unaccompanied, stored, parked or left overnight on a public street, alley, highway, parking lot, sidewalk or right-of-way at any time. 8.32.100 Food Truck Vending Requirements A. Subject to the provisions in this chapter, a food truck vendor may sell or offer to sell merchandise, food or beverages from a food truck only at the request of a bona fide purchaser and may not park or stand for longer than 60 minutes on any public street, alley, highway, parking lot, sidewalk or right-of-way. B. Each food truck operator is subject to the business license requirements contained in chapters 5.04 and 5.08 of this code. C. Each food truck used for vending must obtain a vending equipment permit pursuant to section 8.32.030 of this chapter. D. 1. 2. 3. 4. 5. 6. 7. 8. 9. A food truck vendor may not vend in the following locations: At any location that obstructs traffic signals or regulatory signs; Within 100 feet of another food truck vendor; Within any street, alley, highway or public right-of-way with a posted speed limit greater than 25 miles per hour; Within 100 feet of an intersection that contains a street, alley, highway or public right-of-way with a posted speed limit greater than 25 miles per hour; At any location that does not have an unobstructed view for 200 feet in both directions along the street, alley, highway or public right-of-way. Within 25 feet of any intersection, public driveway or building entrance. Within 25 feet of any fire hydrant or fire escape; Within 100 feet of any vehicle entrance of any fire station, police department, hospital or any other structure involved in health and safety emergency matters; Within 25 feet of an outdoor commercial dining or patio area; 8 February 12, 2019 Item #2 Page 16 of 42 10. Within 500 feet of a permitted special event or street fair; 11. Within one-half mile of a public school building or school grounds while children are going to or from the school, during a recess period or within 30 minutes before or after the school's opening or closing hours; 12. Within 500 feet of high-traffic landmarks and venues, as determined by the City Manager or designee and published in an Administrative Order; 13. Along any portion of the Carlsbad Village Sea Wall trail, which extends alongside Carlsbad Boulevard and adjacent to the beach, between the cross streets of Pine Avenue and Tamarack Avenue. E. Notwithstanding any specific requirements of this section, no vendor shall operate a food truck in such a way as to endanger the safety of person or property or to cause a public or private nuisance. F. All ice cream trucks must be equipped at all times with signs mounted on both the front and the rear and clearly legible from a distance of 100 feet under daylight conditions, incorporating the words "WARNING" and "CHILDREN CROSSING." Each sign shall be at least 12 inches high by 48 inches wide, with letters of a dark color and at least four inches in height, a one-inch solid border and a sharply contrasting background. G. All food truck vendors are forbidden from using sound-making devices in conjunction with vending, including but not limited to loudspeakers, public address systems, bells, chimes or other noisemaking devices. H. Except for Department of Transportation approved vehicle lights, no artificial lighting for, or installed on, food trucks is permitted. I. No freestanding structures may be attached to or erected adjacent to a food truck including, but not limited to signs, umbrellas, ice chests, chairs, tables or benches. J. Food truck vendors are responsible for ensuring that the 10-foot area immediately surrounding any vending space is kept clean and free of trash and debris associated with the vending operation. 8.32.110 Penalties and Fines A. Any violation of any of the provisions of this chapter by any individual holding a valid vending equipment permit will constitute an infraction and shall be punished as follows: 1. An administrative citation and $100 penalty for a first violation. 2. An administrative citation and $200 penalty for a second violation. 3. An administrative citation and $500 penalty for a third and each subsequent violation. B. Any person found vending without a valid vending equipment permit is punishable by the following in lieu of the administrative fines set forth in subdivision (A): 1. An administrative fine of $250 for a first violation. 2. An administrative fine of $500 for a second violation within one year of the first violation. 3. An administrative fine of $1,000 for a third violation within one year of the first violation. 4. An administrative fine of $1,000 for each subsequent violation within one year of the first violation and impoundment of vending equipment pursuant to Section 8.32.120 of this chapter. 9 February 12, 2019 Item #2 Page 17 of 42 5. Proof of a valid vending equipment permit issued by the City will result in a reduction of administrative fines to the administrative fine schedule set forth in subdivision (A). C. With regard to sidewalk vendors only: Failure to pay an administrative fine pursuant to subdivisions (A) and (B) shall not be punishable as an infraction or misdemeanor; additional fines, fees, assessments or any other financial conditions beyond those authorized in subdivisions (A) and (B) shall not be assessed. D. The issuance of four or more administrative citations or verifiable municipal code violations concerning vending equipment permit requirements within a 12-month period shall result in revocation of all vending equipment permits pursuant to this chapter. E. Vending equipment permit revocation is subject to a 30-day prior written notice. A permittee may appeal such decision to the City Manager or designee by filing a written notice of appeal within 10 calendar days after receipt of the notice of denial or revocation. The City Manager or designee shall review and render a decision on the appeal within 90 calendar days. The decision made by the City Manager or designee shall be final. F. In the event a vending equipment permit is revoked, an application to reestablish any vending equipment permit pursuant to this chapter shall not be accepted for a minimum period of 36 months from the date the prior permit was revoked. 8.32.120 lmpoundment of Vending Equipment A. In addition to the administrative fines taken pursuant to Section 8.32.120 above, any enforcement officer, as defined in the Carlsbad Municipal Code section 1.10.010, may, upon an individual's fourth or greater violation of this chapter, impound vehicles, vending equipment and any perishable or non-perishable goods therein. B. Any owner of impounded vehicles and/or vending equipment may, within 10 days, request an administrative hearing before a hearing officer appointed by the City. C. By 5:00pm on the next business day following impoundment, a violator will be contacted regarding the details given in the impoundment citation. The equipment and/or vehicles will then be released to the owner provided that proper proof of ownership is presented and the City receives payment in full of all towing and administrative costs incurred as a result of the violation. Any unclaimed items will be considered abandoned and forfeited to the City after 90 days following impoundment. 8.32.130 Sidewalk Cafes Subject to the provisions of Title 21 of the Carlsbad Municipal Code, a business located in a commercial zone may erect permanent dining and lounge areas on public sidewalks subject to the discretion of the City. If permitted by the provisions of Title 21, a permanent structure, all or part of which is located on a public street, sidewalk, parking lot or easement, may be used for the sale of goods or merchandise, provided that all appropriate permits required by Titles 6, 11, 18 and 21 have been issued. 10 February 12, 2019 Item #2 Page 18 of 42 8.32.140 Sidewalk Sales The City Manager or designee may, from time to time, issue temporary permits providing for the holding of promotional sidewalk sales, subject to such restrictions as to length of time and other conditions as the City Manager or designee deems reasonably necessary for the public health, safety and welfare. 8.32.150 Street Fairs The City Manager or designee may from time to time issue temporary permits for street fairs subject to such restrictions as to the length of time and other conditions as the City Manager or designee deems reasonably necessary for the public health, safety and welfare. 8.32.160 Standing Except as otherwise provided, enforcement of this chapter is at the sole discretion of the persons authorized to enforce this chapter. Nothing in this chapter shall create a right of action in any person against the City or its agents for damages or to compel public enforcement of this chapter against private parties. 8.32.170 Severability If any subsection, subdivision, clause, sentence, phrase or portion of this chapter is held unconstitutional, invalid or unenforceable by any court or tribunal, the remaining subsections, subdivisions, clauses, sentences, phrases or portions of this ordinance shall remain in full force and effect. 8.32.180 Non-Applicability The following persons, entities or activities are exempt from the requirements of this chapter: A. Any vendor or person engaged solely in artistic performances, free speech and/or petitioning activities; B. Nonprofit educational institutions, fraternal and service clubs, bona fide religious organizations and agencies of any federal, state or local governments; C. Nonprofit private clubs where a basic membership fee covers the cost of the use of the facilities; D. Community organizations/events not otherwise regulated by the Carlsbad Municipal Code, upon approval of the City Manager or designee; E. Businesses and trades that are exempt from licensing and tax regulations under federal and state statutes; F. Any organization, society, association or corporation desiring to solicit or have solicited in its name money, donations of money or property or financial assistance of any kind or desiring to sell or distribute any item of literature or merchandise to persons other than members of such organization upon the streets, in office or business buildings, by house-to-house canvass or in public places for charitable, religious, patriotic or philanthropic purpose exclusively. 11 February 12, 2019 Item #2 Page 19 of 42 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and the City Clerk shall certify the adoption of this ordinance and cause the full text of the ordinance or a summary of the ordinance prepared by the City Attorney to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a Regular Meeting of the Carlsbad City Council on the 12th day of February 2019, and thereafter PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the_ day of ___ ~ 2019, by the following vote, to wit: AYES: NOES: ABSENT: APPROVED AS TO FORM AND LEGALITY: CELIA A. BREWER, City Attorney MATT HALL, Mayor BARBARA ENGLESON, City Clerk (SEAL) 12 February 12, 2019 Item #2 Page 20 of 42 EXHIBIT 2 Chapter 8.32 PH>DLE:RS, SOLICITORS, VE:NDORS AND CANWtSSE:RS 8.32.QlQ Displa•.•, sale or storage on rn,blic '.'1-a•1s prohibiteEI. A. e>ECept as otheri.vise provided in this chapter, no person shall display, sell or store any goods or merchandise from any temporary or permanent display, vehicle, 'Nagon or pushcart upon any public street, alley, highway, parking lot, sidewalk or right of way. B. No person shall sell or offer to sell goods or merchandise from any temporary display, vehicle, wagon or pushcart in any commercial zone e>ccept as provided in Title 21. If permitted by the provisions of Title 21, a permanent structure, all or part of ·.vhich is located on a public street, side,..,alk, parking lot or easement, may be used for the sale of goods or merchandise, provided that all appropriate permits required by Titles 6, 11, 18 and 21 have been issued. C. No person shall sell or offer to sell goods, merchandise, food or beverages from any vehicle on any portion of any public street, alley, highway, parking lot, sidewalk, or right of way within one half mile of a public school building or school grounds while children are going to or from the school, during opening or closing hours, or during a recess period. D. Subject to subsection C of this section, a person may display or sell food or beverages from a motor vehicle specifically equipped for display or sale of food or beverages, provided that the person has first obtained a permit required by this chapter. A person may stand or park such vehicles for the purpose of selling or offering to sell their food or beverages only at the request of a bona fide purchaser for a period of time not to exceed 10 minutes at any one place. If the person is displaying or selling food or beverages from an ice cream truck, the person must also comply with the provisions in Section 8.32.015 of this chapter. (Ord. NS 587 § 1, 2001) 8.32.QlS Ice crean:i tr1,1cl,s. A. The city council finds and declares that motor vehicles engaged in vending ice cream and similar food items in residential neighborhoods can increase the danger to children, and it is necessary that these vehicles are clearly seen and noticed by motorists and pedestrians to protect public safety. B. As used in this section, the term "ice cream truck" means a motor vehicle engaged in the curbside vending or sale of frozen or refrigerated desserts, confections, or novelties commonly known as ice cream, or prepackaged candies, snack foods, or soft drinks, primarily intended for sale to children under 12 years of age. C. Any ice cream truck shall be equipped at all times while engaged in vending in a residential area with signs mounted on both the front and the rear and clearly legible from a distance of 100 feet under daylight conditions, incorporating the words "\NARNING" and "CHILDREN CROSSING." each sign shall be at least 12 inches high by q8 inches wide, with letters of a dark color and at least four inches in height, a one inch solid border, and a sharply contrasting background. D. A person may not vend from an ice cream truck that is stopped, parked, or standing on any pub lic street, alley, highway, or public right of way under any of the following conditions: 1. If the street, alley, highway, or public right of way has posted speed limit of greater than 25 miles per hour. February 12, 2019 Item #2 Page 21 of 42 2. If the street, alley, highv.1ay, or public right of 1,1,iay is within 100 feet of an intersection with an opposing street, alley, highway, or public right of way that has a posted speed limit greater than 25 miles per hour. 3. If the vendor does not have an unobstructed view for 200 feet in both directions along the street, alley, high1.vay, or public right of way and of any traffic on the street, alley, high_way, or public right of way. (Ord. NS 587 § 2, 2001) 8.32.020 Permits fer promotional sales. The city manager may, from time to time, issue temporary permits providing for the holding of promotional side1.valk sales, subject to such restrictions as to length of time and other conditions as the city manager deems reasonably necessary for the public health, safety and welfare. (Ord. 6076 § 1, ~ 8.32.030 Street fairs. The city manager may from time to time issue temporary permits for street fairs subject to such restrictions as to the length of time and other conditions as the city manager deems reasonably necessary for the public health, safety and welfare. (Ord . 6076 § 1, 1985) 8.32.040 ~ntering private property fer the p1:1rpese ef sale , .... ithe1:1t permission. No person shall go onto private property within the city for the purpose of selling, offering for sale or soliciting orders for the sale of any merchandise, product, service or thing whatsoever 1Nhen the occupant of such property has given notice or warned such persons to keep away. A sign posted by the occupant of the property, 'Nith the 'Nords "no solicitors" or "no peddlers" or other similar words, at or near the front door or primary entrance to a residential structure on private property, shall constitute sufficient notice or warning pursuant to this section. For any property used for a purpose of other than a residential use such notice may be posted, at each public entrance to any structure on the property in any conspicuous location on the property, in such a manner so as to provide reasonable notice of the restriction. (Ord . 6076 § 1, 1985) 8.32.0§0 Restrietien en he1:1rs. No person shall go onto private property for the purposes of commercial or noncommercial peddling, soliciting, 1,1ending or canvassing before the hour of 8:00 a.m. or after the hour of 8:00 p.m., except that while the United States is on federally mandated daylight savings time the hours shall be 8:00 a.m. to 9:00 p.m. (Ord. NS 250 § 1, 1993; Ord. 6079 § 1, 1986; Ord. 6076 § 1, 1985) 8,32.0tiO 61:1siness lieense req1:1ired. All persons engaged in the business of soliciting, peddling or vending subject to the provisions of this chapter shall obtain a business license pursuant to Chapters i,Q1 and~ of this code. (Ord. 6076 § 1, ~ February 12, 2019 Item #2 Page 22 of 42 CHAPTER 8.32 VENDING AND SOLICITING SECTIONS 8.32.010 Purpose and Findings 8.32.020 Definitions 8.32.030 Vending Equipment Permit Requirements 8.32.040 Business License Requirement 8.32.050 Release and Indemnification Requirements 8.32.060 Insurance Requirement 8.32.070 Permit Denial and Revocation 8.32.080 Sidewalk Vending Generally 8.32.090 Sidewalk Vending Equipment 8.32.100 Food Truck Vending Requirements 8.32.110 Penalties and Fines 8.32.120 lmpoundment of Vending Equipment 8.32.130 Sidewalk Cafes 8.32.140 Sidewalk Sales 8.32.150 Street Fairs 8.32.160 Standing 8.32.170 Severability 8.32.180 Non-Applicability 8.32.010 Purpose and Findings EXHIBIT 3 A. The purpose of this chapter is to establish a regulatory program to comply with California State Senate Bill 946 (Chapter 459, Statutes 2018). This chapter's provisions will encourage micro- business owners to engage in the business and economic community of the City of Carlsbad by removing prohibitions against vending on public sidewalks and right-of-ways, while still maintaining regulations that protect public health, safety and welfare. The time, place and manner restrictions throughout this chapter are necessary to: 1. Comply with the Americans with Disabilities Act (ADA) by providing clear and open sidewalks and access to public transportation areas; 2. Successfully provide police, fire and emergency services; 3. Ensure the safe flow of vehicular traffic and pedestrians along public roadways, sidewalks and right-of-ways, particularly along and near high traffic and narrow sidewalks and right-of- ways; 4. Protect natural resources and preserve the utility, natural beauty and recreational value of public spaces throughout the City; 5. Protect public health and safety by ensuring vendors utilize proper sanitation in food handling and preparation; 1 February 12, 2019 Item #2 Page 23 of 42 6. With regard to restrictions on vending in the Carlsbad Village Sea Wall trail area as defined herein, many portions of this trail area are narrow and regularly host a high volume of pedestrians and dogs (on the upper area) traveling in each direction. Restrictions on sidewalk vending are necessary to protect the public from injury given the Sea Wall area's popularity as a destination for tourists and residents alike; 7. With regard to restrictions on vending in public parks and recreational facilities, these restrictions are necessary to: preserve the public's free use and enjoyment of natural resources and recreational opportunities; prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of these spaces; and ensure the health, safety and welfare of persons engaged in active sports activities and spectators of active sports activities. B. This chapter is found to be categorically exempt from environmental review pursuant to CEQA Guidelines section 15061(b)(3). in that the City Council finds and determines that there is nothing in this chapter or its implementation, either individually or cumulatively, which would foreseeably have any significant effect on the environment. C. Nothing in this chapter shall be construed to affect the existing requirements of Carlsbad Municipal Code section 11.32.030, concerning unlawful acts and the issuing of facility use and special event permits in City parks and beaches. D. Nothing in this chapter shall be construed to affect the requirements of San Diego County Code section 61.201 or Part 7 (beginning at Section 113700) of Division 104 of the California Health and Safety Code as applied to an individual who sells food or beverages. 8.32.020 Definitions For purposes of this chapter the following definitions apply: "Business license" means a license issued by the City of Carlsbad pursuant to Carlsbad Municipal Code chapters 5.04 and 5.08, authorizing an individual to conduct business within City limits. "City" means the City of Carlsbad. "Conveyance" means any wheeled device used to carry persons or property. "Food truck" means a motorized vehicle specifically equipped for the sale of food or beverages used for vending purposes. "Food truck vendor" means a person who vends food or beverages using a food truck. "Ice cream truck" means a food truck engaged in the curbside vending or sale of frozen or refrigerated desserts, confections or novelties commonly known as ice cream, or prepackaged candies, snack foods or soft drinks, primarily intended for sale to children under 12 years of age. "Pedestrian path" means a paved path or walkway owned by the City or other public entity that is specifically designed for pedestrian travel, other than a sidewalk. "Permittee" means the authorized recipient of a duly issued vending equipment permit. 2 February 12, 2019 Item #2 Page 24 of 42 "Person" means any natural person, firm, association, business, trust, organization, corporation, partnership, company, or any other entity, which is recognized by law as the subject of rights or duties. "Residential street" means any street that adjoins one or more single family or multi-family residentially zoned parcel(s). "Sidewalk" means that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation specifically designed for pedestrian travel and that is owned by the City or other public entity. "Sidewalk Vendor" means a person who vends food or merchandise using non motorized vending equipment or from one's person, upon or along a public sidewalk or other public pedestrian path. "Vend" or "vending" means an offer to sell or the sale of goods, merchandise, food or beverages on a public street, alley, highway, parking lot, sidewalk, pedestrian path or right-of-way. "Vending equipment" means any motorized or non-motorized conveyance used for sidewalk or food truck vending purposes including but not limited to: food trucks, pushcarts, pedal-driven carts, wagons, bicycles or any other free-standing conveyance. "Vending equipment permit" means a written City of Carlsbad approval required prior to the use of vending equipment for vending purposes. 8.32.030 Vending Equipment Permit Requirement A. All sidewalk and food truck vendors wishing to utilize a motorized vehicle or non-motorized conveyance for vending, including but not limited to food trucks, carts, wagons, bicycles or any other miscellaneous conveyance, must obtain a vending equipment permit for each conveyance prior to use on any public street, sidewalk or right-of-way. Permits shall be issued by the Finance Director or designee, unless otherwise specified in the Carlsbad Municipal Code, including but not limited to section 11.32.030. B. A vending equipment permit shall be valid for one calendar year from the date of issuance and must be renewed annually. Permits may only be issued for one conveyance and shall not be sold, assigned or transferred. C. To obtain a vending equipment permit, an applicant must submit the following information on a permit application form provided by the City's Finance Department: 1. The name, address and telephone number of the applicant and business owner; 2. Proof of valid, government-issued identification (i.e., driver's license, state identification card, taxpayer identification number, social security card, birth certificate or passport); 3. Description of the type of motorized or non-motorized vehicle or conveyance to be permitted, including license number, make, model, size, signage and design type; 4. The nature of every good, merchandise, food or beverage the applicant intends to sell using the vehicle or non-motorized conveyance; 5. The proposed character, location, days, hours and route of vending operations; 3 February 12, 2019 Item #2 Page 25 of 42 6. Proof of insurance, as required by s'ection 8.32.060 of this chapter; 7. Proof of a valid California Department of Tax and Fee Administration seller's permit that notes the City of Carlsbad as a location or sub-location, which shall be maintained for the duration ofthe vendor's permit; 8. Proof of a valid San Diego County Health Certificate and San Diego County Food Handlers Card; and 9. Such other information as the City Manager or designee deems reasonably necessary to administer this chapter. D. Each vending equipment permit application shall be accompanied by a non-refundable permit fee as established by resolution of the City Council. 8.32.040 Business License Requirement A. All individuals engaged in vending on any City street, alley, highway, parking lot or right-of-way subject to the provisions of this chapter are subject to the business license requirements contained in chapters 5.04 and 5.08 of this code. B. A City business license shall be prominently be displayed at all times on the vendor's person or vending equipment during all vending activities. 8.32.050 Release and Indemnification Requirements A. If the City issues a permittee a vending equipment permit, as a condition of such permit issuance, permittee agrees to waive and release the City and its officers, agents, employees and volunteers from and against any and all claims, costs, liabilities, expenses or judgments including attorney's fees and court costs arising out of any vending activities or any illness or injury resulting therefrom, and hereby agrees to indemnify and hold harmless the City from and against any and all such claims, whether caused by negligence or otherwise, except for illness and injury resulting directly from gross negligence or willful misconduct on the part of the City or its employees. B. If the City issues a permittee a vending equipment permit, as a condition of such permit issuance, permittee further must acknowledge that the use of public property is at the sidewalk vendor or food truck vendor's own risk, the City does not take any steps to ensure public property is safe or conducive to the vending activities, and the vendor uses public property at their own risk. 8.32.060 Insurance Requirements All sidewalk vendors and food truck vendors shall obtain and maintain throughout the duration of any permit issued under this chapter any insurance required by the City's Risk Manager. All vendors must provide evidence of any required insurance, including but not limited to commercial general liability insurance, auto insurance and worker's compensation insurance, in a form and with a coverage amount acceptable to the City's Risk Manager based on the size and risk factors of the business. With regard to any commercial general liability insurance policy, the vendor shall name the City as an additional insured, and with a coverage amount to be determined by the Risk Manager according to the size and risk factors of the business. When determining the size of the business and the risk to customers and the general public, the Risk Manager's estimates shall be determinative. The insurance policy required by 4 February 12, 2019 Item #2 Page 26 of 42 this section shall not be cancelled, limited or not renewed without 30 days' prior written notice to the City. 8.32.070 Permit Denial and Revocation A. Any false or misleading statements or information provided in a vending equipment permit application shall be grounds for denial of the application and/or imposition of penalties as outlined in accordance with this chapter. B. A vending equipment permit application may be denied if the applicant has had a prior vending equipment permit revoked within the past 36 calendar months for the same vending equipment. C. D. A vending equipment permit may be revoked for any of the following reasons: l. False information or facts supplied by the applicant upon which the issuance of the vending equipment permit was based; 2. Failure of the applicant to promptly notify the City Manager or designee of any material changes to the facts provided in a vending equipment permit application subsequent to the issuance of a vending equipment permit, including but not limited to lapse of liability insurance; 3. Failure of the applicant to comply with the regulations set forth in this chapter. Revocation of a vending equipment permit shall be served in writing no less than 30 days before revocation to the address listed on the initial application or to any subsequent address provided to the City by the permittee. E. Any applicant whose application for a vending equipment permit is denied or whose permit is revoked may appeal such decision to the City Manager or designee by filing a written notice of appeal within 10 calendar days after receipt of the notice of denial or revocation. The City Manager or designee shall review and render a decision on the appeal within 90 calendar days. The decision made by the City Manager or designee shall be final. 8.32.080 Sidewalk Vending Generally A. Vending activities may occur between the hours of 8:00am and sunset in all residential zoned areas and between the hours of 8:00am and 10:00pm in industrial and commercial zoned areas and between the hours of. B. No sidewalk vending of any type shall take place to any individuals traveling within motor vehicles along a public roadway. C. A sidewalk vendor shall not vend on any exclusively residential street for longer than 60 minutes at any given time. D. No sidewalk vending of any kind shall take place in the following locations: l. In the public right-of-way or any area that blocks pedestrian or vehicle access; 2. Any public property that does not meet the definition of a sidewalk, including but not limited to any alley, beach, pier, square, street, street end or parking lot; 5 February 12, 2019 Item #2 Page 27 of 42 3. Within 50 feet of another sidewalk vendor; 4. Within 18 inches from the edge of a curb; 5. Any location that obstructs traffic signals or regulatory signs; 6. Within 15 feet of any intersection, driveway or building entrance, or within any space designed for vehicular parking; 7. Within 15 feet of any fire hydrant or fire escape; 8. Within 100 feet of any vehicle entrance of any fire station, police department, hospital or any other structure involved in health and safety emergency matters; 9. Within 15 feet of any loading zone, bus stop, parking space or access ramp designed for persons with disabilities; 10. Within 10 feet of an outdoor dining or patio area; 11. Within 500 feet of a permitted special event or street fair; 12. Within one-half mile of a public school building or school grounds while children are going to or from the school, during a recess period or within 30 minutes before or after the school's opening or closing hours; 13. Within 500 feet of high-traffic landmarks and venues, as determined by the City Manager or designee and published in an Administrative Order, which shall include justification that such restrictions are directly related to objective health, safety or welfare concerns; 14. On any portion of the Carlsbad Village Sea Wall trail, which extends alongside Carlsbad Boulevard and adjacent to the beach, between the cross streets of Pine Avenue and Tamarack Avenue. This restriction on vending shall include both the upper and lower portions of the Sea Wall trail. E. Vending activities in public parks and recreational facilities must also comply with the following: 1. Vending within public parks or recreational facilities is allowed only upon or alongside sidewalks or other paved or marked pedestrian pathways. Outside of these aforementioned areas, vending shall not take place on sand, dirt, grass or on any space which would obstruct, damage or otherwise adversely affect the public's use and enjoyment of natural resources and recreational opportunities, or contribute to an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park. 2. Vending activities that adversely affect the health, safety and welfare of persons engaged in active sports activities and spectators of active sports activities are prohibited. 3. Sidewalk vending activities lasting 10 minutes or longer in duration shall not be permitted within any area of a public park if the park operator has signed an agreement for concessions that exclusively permits the sale of food or merchandise by a specified concessionaire. 6 February 12, 2019 Item #2 Page 28 of 42 4. A valid park and facility use permit or special event permit obtained pursuant to Carlsbad Municipal Code section 11.32.030 may waive these requirements for limited engagements or events. 8.32.090 Sidewalk Vending Equipment A. Notwithstanding any specific requirements of this section, no sidewalk vendor shall use vending equipment in such a way as to endanger the safety of person or property or to cause a public or private nuisance, including but not limited to the use of an open flame. B. All non-motorized vending equipment including push carts, wagons, pedal carts or bikes shall not exceed six feet in length and four feet in width. C. Vendors are responsible for ensuring that the 10-foot area immediately surrounding the vending space is kept clean and free of trash and debris associated with their vending operation. D. Vendors are forbidden from using sound-making devices in conjunction with vending, including but not limited to loudspeakers, public address systems, bells, chimes or other noisemaking devices. E. Vendors are forbidden from erecting freestanding structures adjacent to vending activities, including but not limited to signs, umbrellas, ice chests, chairs, tables or benches. F. No vending equipment shall be attached to or make contact with any utility pole, street sign, bus stop, trash can, traffic pole or any other public structure. G. No vending equipment or merchandise shall be left unaccompanied, stored, parked or left overnight on a public street, alley, highway, parking lot, sidewalk or right-of-way at any time. 8.32.100 Food Truck Vending Requirements A. Subject to the provisions in this chapter, a food truck vendor may sell or offer to sell merchandise, food or beverages from a food truck only at the request of a bona fide purchaser and may not park or stand for longer than 60 minutes on any public street. alley, highway, parking lot, sidewalk or right-of-way. B. Each food truck operator is subject to the business license requirements contained in chapters 5.04 and 5.08 of this code. C. Each food truck used for vending must obtain a vending equipment permit pursuant to section 8.32.030 of this chapter. D. A food truck vendor may not vend in the following locations: 1. At any location that obstructs traffic signals or regulatory signs; 2. Within 100 feet of another food truck vendor; 3. Within any street, alley, highway or public right-of-way with a posted speed limit greater than 25 miles per hour; 4. Within 100 feet of an intersection that contains a street, alley, highway or public right-of-way with a posted speed limit greater than 25 miles per hour; 5. At any location that does not have an unobstructed view for 200 feet in both directions along the street, alley, highway or public right-of-way. 7 February 12, 2019 Item #2 Page 29 of 42 E. 6. Within 25 feet of any intersection, public driveway or building entrance. 7. Within 25 feet of any fire hydrant or fire escape; 8. Within 100 feet of any vehicle entrance of any fire station, police department, hospital or any other structure involved in health and safety emergency matters; 9. Within 25 feet of an outdoor commercial dining or patio area; 10. Within 500 feet of a permitted special event or street fair; 11. Within one-half mile of a public school building or school grounds while children are going to or from the school, during a recess period or within 30 minutes before or after the school's opening or closing hours; 12. Within 500 feet of high-traffic landmarks and venues, as determined by the City Manager or designee and published in an Administrative Order; 13. Along any portion of the Carlsbad Village Sea Wall trail, which extends alongside Carlsbad Boulevard and adjacent to the beach, between the cross streets of Pine Avenue and Tamarack Avenue. Notwithstanding any specific requirements of this section, no vendor shall operate a food truck in such a way as to endanger the safety of person or property or to cause a public or private nuisance. F. All ice cream trucks must be equipped at all times with signs mounted on both the front and the rear and clearly legible from a distance of 100 feet under daylight conditions, incorporating the words "WARNING" and "CHILDREN CROSSING." Each sign shall be at least 12 inches high by 48 inches wide, with letters of a dark color and at least four inches in height, a one-inch solid border and a sharply contrasting background. G. All food truck vendors are forbidden from using sound-making devices in conjunction with vending, including but not limited to loudspeakers, public address systems, bells, chimes or other noisemaking devices. H. Except for Department of Transportation approved vehicle lights, no artificial lighting for, or installed on, food trucks is permitted. I. No freestanding structures may be attached to or erected adjacent to a food truck including, but not limited to signs, umbrellas, ice chests, chairs, tables or benches. J. Food truck vendors are responsible for ensuring that the 10-foot area immediately surrounding any vending space is kept clean and free oftrash and debris associated with the vending operation. 8.32.110 Penalties and Fines A. Any violation of this chapter by any person holding both a valid vending equipment permit and a valid business license, or by any person holding a valid business license in the case of persons who do not e gui r:e-a-ve R ci i 11g-@gui@m@At-@@rm it-@u r-s u a nt-t0-s@Gti0 R-g.J2~QJQ(A),s bi a II-be-@bl nish@ci-as-fo ll0ws: 1. An administrative citation and $100 penalty for a first violation. 2. An administrative citation and $200 penalty for a second violation. 3. An administrative citation and $500 penalty for a third and each subsequent violation. 8 February 12, 2019 Item #2 Page 30 of 42 B. Any person found vending without a valid business license or a vending equipment permit, if required pursuant to section 8.32.030(A), is punishable by the following in lieu of the administrative fines set forth in subdivision (Al: C. 1. An administrative fine of $250 for a first violation. 2. An administrative fine of $500 for a second violation within one year of the first violation. 3. An administrative fine of $1,000 for a third violation within one year of the first violation. 4. An administrative fine of $1,000 for each subsequent violation within one year of the first violation and impoundment of vending equipment pursuant to Section 8.32.120 of this chapter. 5. Proof of a valid vending equipment permit and business license issued by the City will result in a reduction of administrative fines to the administrative fine schedule set forth in subdivision (Al. Any food truck vendor, owner and/or operator who violates this chapter, chapter 5.04 or chapter 5.08 of the Carlsbad Municipal Code may alternatively be charged with an infraction, pursuant to Carlsbad Municipal Code section 1.08.010. D. Any sidewalk vendor, owner or operator who fails to pay an administrative fine pursuant to subdivisions (Al and (Bl of this section shall not be charged with an infraction or misdemeanor; additional fines, fees, assessments or any other financial conditions beyond those authorized in subdivisions (Al and (Bl of this section shall not be assessed. E. Vending equipment permit revocation 1. The issuance of four or more administrative citations or verifiable municipal code violations concerning vending equipment permit requirements within a 12-month period shall result in revocation of all vending equipment permits pursuant to this chapter. 2. Vending equipment permit revocation is subject to a 30-day prior written notice. A permittee may appeal such decision to the City Manager or designee by filing a written notice of appeal within 10 calendar days after receipt of the notice of denial or revocation. The City Manager or designee shall review and render a decision on the appeal within 90 calendar days. The decision made by the City Manager or designee shall be final. 3. In the event a vending equipment permit is revoked, an application to reestablish any vending equipment permit pursuant to this chapter shall not be accepted for a minimum period of 36 months from the date the prior permit was revoked. 8.32.120 lmpoundment of Vending Equipment A. In addition to the administrative fines taken pursuant to Section 8.32.120 above, any enforcement officer, as defined in the Carlsbad Municipal Code section 1.10.010, may, upon an individual's fourth or greater violation of this chapter, impound vehicles, vending equipment and any perishable or non-perishable goods therein. B. Any owner of impounded vehicles and/or vending equipment may, within 10 days, request an adm inistrative hearing before a hearing officer appointed by the City. 9 February 12, 2019 Item #2 Page 31 of 42 C. By 5:00pm on the next business day following impoundment, a violator will be contacted regarding the details given in the impoundment citation. The equipment and/or vehicles will then be released to the owner provided that proper proof of ownership is presented and the City receives payment in full of all towing and administrative costs incurred as a result of the violation. Any unclaimed items will be considered abandoned and forfeited to the City after 90 days following impoundment. 8.32.130 Sidewalk Cafes Subject to the provisions of Title 21 of the Carlsbad Municipal Code, a business located in a commercial zone may erect permanent dining and lounge areas on public sidewalks subject to the discretion of the City. If permitted by the provisions of Title 21, a permanent structure, all or part of which is located on a public street, sidewalk, parking lot or easement, may be used for the sale of goods or merchandise, provided that all appropriate permits required by Titles 6, 11, 18 and 21 have been issued. 8.32.140 Sidewalk Sales The City Manager or designee may, from time to time, issue temporary permits providing for the holding of promotional sidewalk sales, subject to such restrictions as to length of time and other conditions as the City Manager or designee deems reasonably necessary for the public health, safety and welfare. 8.32.150 Street Fairs The City Manager or designee may from time to time issue temporary permits for street fairs subject to such restrictions as to the length of time and other conditions as the City Manager or designee deems reasonably necessary for the public health, safety and welfare. 8.32.160 Standing Except as otherwise provided, enforcement of this chapter is at the sole discretion of the persons authorized to enforce this chapter. Nothing in this chapter shall create a right of action in any person against the City or its agents for damages or to compel public enforcement of this chapter against private parties. 8.32.170 Severability If any subsection, subdivision, clause, sentence, phrase or portion of this chapter is held unconstitutional, invalid or unenforceable by any court or tribunal, the remaining subsections, subdivisions, clauses, sentences, phrases or portions of this ordinance shall remain in full force and effect. 8.32.180 Non-Applicability The following persons, entities or activities are exempt from the requirements of this chapter: 10 February 12, 2019 Item #2 Page 32 of 42 A. Any vendor or person engaged solely in artistic performances, free speech and/or petitioning activities; B. Nonprofit educational institutions, fraternal and service clubs, bona fide religious organizations and agencies of any federal, state or local governments; C. Nonprofit private clubs where a basic membership fee covers the cost of the use of the facilities; D. Community organizations/events not otherwise regulated by the Carlsbad Municipal Code, upon approval of the City Manager or designee; E. Businesses and trades that are exempt from licensing and tax regulations under federal and state statutes; F. Any organization, society, association or corporation desiring to solicit or have solicited in its name money, donations of money or property or financial assistance of any kind or desiring to sell or distribute any item of literature or merchandise to persons other than members of such organization upon the streets, in office or business buildings, by house-to-house canvass or in public places for charitable, religious, patriotic or philanthropic purpose exclusively. 11 February 12, 2019 Item #2 Page 33 of 42 EXHIBIT 4 CONTACT INFORMATION Business Owner (Required) D Same as Business Name/DBA Name •owner Name _________________________ *Phone: _( __ _ Fl~ ~~ *Address: Street Address City State Zip Code *Email Address Emergency Contact (Cannot be the same as business owner or Operator Contact) *Name: *Phone: First Last *Address: Street Address City State Zip Code *Email Address OPERATOR(S) CONTACT: Attach additional pages as needed to list additional operators Operator Contact D Same as Business Owner *Attach a Copy of Government Issued Photo Identification, Per Operator *Name: *Phone: ( ----------------------------First Last *Address: Street Address City State Zip Code *Email Address Type of merchandise, food and/or beverage to be Sold: ___________________________ _ *If Food Sales, Please Attach Copies of the following: San Diego County Health Certificate AND San Diego County Food Handlers Card Proposed Areas of Operation: Proposed Days/Hours of Operation: □ SUNDAY To: □ TUESDAY To: □ THURSDAY To: □ SATURDAY To: Provide a Description of Vendor Equipment (Size, Type, Model, Etc): From: 0 MONDAY To: From: □ WEDNESDAY To: From: □ FRIDAY To: From: If motorized Vehicle, please provide the Vehicle License Number: *Please attach a Photo of Equipment or Vehicle Page 1 of 2 From: From: ----- From: February 12, 2019 Item #2 Page 34 of 42 Excerpt from Carlsbad Municipal Code Chapter 8.32: Vending and Soliciting 8.32.040 Business License Requirement A. All individuals engaged in vending on any City street, alley, highway, parking lot or right-of-way subject to the provisions of this chapter are subject to the business license requirements contained in chapters 5.04 and 5.08 of this code. B. A City business license shall be prominently be displayed at all times on the vendor's person or vending equipment during all vending activities. 8.32.050 Release and Indemnification Requirements A. If the City issues a permittee a vending equipment permit, as a condition of such permit issuance, permittee agrees to waive and release the City and its officers, agents, employees and volunteers from and against any and all claims, costs, liabilities, expenses or judgments including attorney's fees and court costs arising out of any vending activities or any illness or injury resulting therefrom, and hereby agrees to indemnify and hold harmless the City from and against any and all such claims, whether caused by negligence or otherwise, except for illness and injury resulting directly from gross negligence or willful misconduct on the part of the City or its employees. B. If the City issues a permittee a vending equipment permit, as a condition of such permit issuance, permittee further must acknowledge that the use of public property is at the sidewalk vendor or food truck vendor's own risk, the City does not take any steps to ensure public property is safe or conducive to the vending activities, and the vendor uses public property at their own risk. 8.32.060 Insurance Requirements All sidewalk vendors and food truck vendors shall obtain and maintain throughout the duration of any permit issued under this chapter any insurance required by the City's Risk Manager. All vendors must provide evidence of any required insurance, including but not limited to commercial general liability insurance, auto insurance and worker's compensation insurance, in a form and with a coverage amount acceptable to the City's Risk Manager based on the size and risk factors of the business. With regard to any commercial general liability insurance policy, the vendor shall name the City as an additional insured, and with a coverage amount to be determined by the Risk Manager according to the size and risk factors of the business. When determining the size of the business and the risk to customers and the general public, the Risk Manager's estimates shall be determinative. The insurance policy required by this section shall not be cancelled, limited or not renewed without 30 days' prior written notice to the City. DECLARATION: I,-------------------------------------- Print Name *First *Last BY SUBMITTING THIS APPLICATION, ACCEPT THE CONDITIONS AND DECALRE UNDER PENALTY OF PERJURY THE FOREGOING IS TRUE AND CORRECT. Signature: ____________________ _ Date: Page 2 of2 February 12, 2019 Item #2 Page 35 of 42 ---~ :/#in-., \ ~J ,r .. tll.Ol·C1\l.lrORNl1\ 1;~'\'.i>/" AUTHENTICATED 1:; ,·;,,:_: ELECTRONIC LEGAL MATERIAL Senate Bill No. 946 CHAPTER459 An act to add Chapter 6.2 ( commencing with Section 51036) to Part 1 of Division 1 of Title 5 of the Government Code, relating to sidewalk vendors. [Approved by Governor September 17, 2018. Filed with Secretary of State September 17, 2018.] LEGISLATIVE COUNSEL'S DIGEST SB 946, Lara. Sidewalk vendors. Existing law authorizes a local authority, by ordinance or resolution, to adopt requirements for the public safety regulating any type of vending and the time, place, and manner of vending from a vehicle upon a street. This bill would prohibit a local authority, as defined, from regulating sidewalk vendors, except in accordance with the provisions of the bill. The bill would provide that a local authority is not required to adopt a new program to regulate sidewalk vendors if the local authority has established an existing program that substantially complies with the provisions of the bill. The bill would apply these provisions to a chartered or general law city, county, or city and county. The bill would require a local authority that elects to adopt a sidewalk vending program to, among other things, not require a sidewalk vendor to operate within specific parts of the public right-of-way, except when that restriction is directly related to objective health, safety, or welfare concerns, and not restrict sidewalk vendors to operate only in a designated neighborhood or area, except as specified. The bill would authorize a local authority to, by ordinance or resolution, adopt additional requirements regulating the time, place, and manner of sidewalk vending, as specified, if the requirements are directly related to objective health, safety, or welfare concerns. The bill would also authorize a local authority to prohibit sidewalk vendors in areas located within the immediate vicinity of a permitted certified farmers' market and a permitted swap meet, as specified, and to restrict or prohibit sidewalk vendors within the immediate vicinity of an area designated for a temporary special permit issued by the local authority, as specified. A violation would be punishable only by an administrative fine, as specified, pursuant to an ability-to-pay determination, and proceeds would be deposited in the treasury of the local authority. The bill would require the dismissal of any criminal prosecutions under any local ordinance or resolution regulating or prohibiting sidewalk vendors that have not reached final judgment. The bill would also authorize a person who is currently serving, or who completed, a sentence, or who is subject to a fine, for a conviction of a misdemeanor or infraction for sidewalk 93 Exhibit 5 February 12, 2019 Item #2 Page 36 of 42 Ch. 459 -2- vending, as specified, to petition for dismissal of the sentence, fine, or conviction. Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. This bill would make legislative findings to that effect. The people of the State of California do enact as f ollows: SECTION 1. (a) The Legislature finds and declares all of the following: (1) Sidewalk vending provides important entrepreneurship and economic development opportunities to low-income and immigrant communities. (2) Sidewalk vending increases access to desired goods, such as culturally significant food and merchandise. (3) Sidewalk vending contributes to a safe and dynamic public space. (4) The safety and welfare of the general public is promoted by encouraging local authorities to support and properly regulate sidewalk vending. (5) The safety and welfare of the general public is promoted by prohibiting criminal penalties for violations of sidewalk vending ordinances and regulations. (6) This act applies to any city, county, or city and county, including a charter city. The criminalization of small business entrepreneurs, and the challenges that those entrepreneurs face as a result of a criminal record, are matters of statewide concern. Further, unnecessary barriers have been erected blocking aspiring entrepreneurs from accessing the formal economy, harming California's economy in the process, and disrupting the regulation of business, which is a matter of statewide concern. Moreover, California has an interest in the regulation of traffic, a matter of statewide concern, whether in ensuring the appropriate flow of traffic or in ensuring the safety of pedestrians on the road or the sidewalk. (b) It is the intent of the Legislature to promote entrepreneurship and support immigrant and low-income communities. SEC. 2. Chapter 6.2 ( commencing with Section 51036) is added to Part 1 of Division 1 of Title 5 of the Government Code, to read: CHAPTER 6.2. SIDEWALK VENDORS 51036. For purposes of this chapter, the following definitions apply: (a) "Sidewalk vendor" means a person who sells food or merchandise from a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other nonmotorized conveyance, or from one's person, upon a public sidewalk or other pedestrian path. (b) "Roaming sidewalk vendor" means a sidewalk vendor who moves from place to place and stops only to complete a transaction. 93 February 12, 2019 Item #2 Page 37 of 42 -3-Ch. 459 ( c) "Stationary sidewalk vendor" means a sidewalk vendor who vends from a fixed location. ( d) "Local authority" means a chartered or general law city, county, or city and county. 5103 7. ( a) A local authority shall not regulate sidewalk vendors except in accordance with Sections 51038 and 51039. (b) Nothing in this chapter shall be construed to affect the applicability of Part 7 (commencing with Section 113700) of Division 104 of the Health and Safety Code to a sidewalk vendor who sells food. (c) Nothing in this chapter shall be construed to require a local authority to adopt a new program to regulate sidewalk vendors if the local authority has established an existing program that substantially complies with the requirements in this chapter. 51038. (a) A local authority may adopt a program to regulate sidewalk vendors in compliance with this section. (b) A local authority's sidewalk vending program shall comply with all of the following standards: ( 1) A local authority shall not require a sidewalk vendor to operate within specific parts of the public right-of-way, except when that restriction is directly related to objective health, safety, or welfare concerns. (2) (A) A local authority shall not prohibit a sidewalk vendor from selling food or merchandise in a park owned or operated by the local authority, except the local authority may prohibit stationary sidewalk vendors from vending in the park only if the operator of the park has signed an agreement for concessions that exclusively permits the sale of food or merchandise by the concessionaire. (B) Notwithstanding subparagraph (A), a local authority may adopt additional requirements regulating the time, place, and manner of sidewalk vending in a park owned or operated by the local authority if the requirements are any of the following: (i) Directly related to objective health, safety, or welfare concerns. (ii) Necessary to ensure the public's use and enjoyment of natural resources and recreational opportunities. (iii) Necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park. (3) A local authority shall not require a sidewalkvendor to first obtain the consent or approval of any nongovernrnental entity or individual before he or she can sell food or merchandise. (4) (A) A local authority 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. (B) Notwithstanding subparagraph (A), a local authority may prohibit stationary sidewalk vendors in areas that are zoned exclusively residential, but shall not prohibit roaming sidewalk vendors. (5) A local authority shall not restrict the overall number of sidewalk vendors permitted to operate within the jurisdiction of the local authority, 93 February 12, 2019 Item #2 Page 38 of 42 Ch. 459 -4- unless the restriction is directly related to objective health, safety, or welfare concerns. ( c) A local authority may, by ordinance or resolution, adopt additional requirements regulating the time, place, and manner of sidewalk vending if the requirements are directly related to objective health, safety, or welfare concerns, including, but not limited to, any of the following: (1) Limitations on hours of operation that are not unduly restrictive. In nonresidential areas, any limitations on the hours of operation for sidewalk vending shall not be more restrictive than any limitations on hours of operation imposed on other businesses or uses on the same street. (2) Requirements to maintain sanitary conditions. (3) Requirements necessary to ensure compliance with the federal Americans with Disabilities Act of 1990 (Public Law 101-336) and other disability access standards. (4) Requiring the sidewalk vendor to obtain from the local authority a permit for sidewalk vending or a valid business license, provided that the local authority issuing the permit or business license accepts 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 if the local authority otherwise requires a social security number for the issuance of a permit or business license, and that the number collected shall not be available to the public for inspection, is confidential, and shall not be disclosed except as required to administer the permit or licensure program or comply with a state law or state or federal court order. (5) Requiring the sidewalk vendor to possess a valid California Department of Tax and Fee Administration seller's permit. (6) Requiring additional licenses from other state or local agencies to the extent required by law. (7) Requiring compliance with other generally applicable laws. (8) Requiring a sidewalk vendor to submit information on his or her operations, including, but not limited to, any of the following: (A) The name and current mailing address of the sidewalk vendor. (B) A description of the merchandise offered for sale or exchange. (C) A certification by the vendor that to his or her knowledge and belief, the information contained on the form is true. (D) The California seller's permit number (California Department of Tax and Fee Administration sales tax number), if any, of the sidewalk vendor. (E) If the sidewalk vendor is an agent of an individual, company, partnership, or corporation, the name and business address of the principal. ( d) Notwithstanding subdivision (b ), a local authority may do both of the following: (I) Prohibit sidewalk vendors in areas located within the immediate vicinity of a permitted certified farmers' market or a permitted swap meet during the limited operating hours of that certified farmers' market or swap meet. A "certified farmers ' market" means a location operated in accordance with Chapter 10.5 (commencing with Section 47000) of Division 17 of the 93 February 12, 2019 Item #2 Page 39 of 42 -5-Ch. 459 Food and Agricultural Code and any regulations adopted pursuant to that chapter. A "swap meet" means a location operated in accordance with Article 6 ( commencing with Section 21660) of Chapter 9 of Division 8 of the Business and Professions Code, and any regulations adopted pursuant to that article. (2) Restrict or prohibit sidewalk vendors within the immediate vicinity of an area designated for a temporary special permit issued by the local authority, provided that any notice, business interruption mitigation, or other rights provided to affected businesses or property owners under the local authority's temporary special permit are also provided to any sidewalk vendors specifically permitted to operate in the area, if applicable. For purposes of this paragraph, 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, including, but not limited to, an encroachment permit, special event permit, or temporary event permit, for purposes including, but not limited to, filming, parades, or outdoor concerts. A prohibition of sidewalk vendors pursuant to this paragraph shall only be effective for the limited duration of the temporary special permit. (e) For purposes of this section, perceived community animus or economic competition does not constitute an objective health, safety, or welfare concern. 51039. (a) (1) A violation of a local authority's sidewalk vending program that complies with Section 51038 is punishable only by the following: (A) An administrative fine not exceeding one hundred dollars ($100) for a first violation. (B) An administrative fine not exceeding two hundred dollars ($200) for a second violation within one year of the first violation. (C) An administrative fine not exceeding five hundred dollars ($500) for each additional violation within one year of the first violation. (2) 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. (3) (A) If a local authority requires a sidewalk vendor to obtain a sidewalk vending permit from the local authority, vending without a sidewalk vending permit may be punishable by the following in lieu of the administrative fines set forth in paragraph (1): (i) An administrative fine not exceeding two hundred fifty dollars ($250) for a first violation. (ii) An administrative fine not exceeding five hundred dollars ($500) for a second violation within one year of the first violation. (iii) An administrative fine not exceeding one thousand dollars ($1 ,000) for each additional violation within one year of the first violation. (B) Upon proof of a valid permit issued by the local authority, the administrative fines set forth in this paragraph shall be reduced to the administrative fines set forth in paragraph (1), respectively. (b) The proceeds of an administrative fine assessed pursuant to subdivision (a) shall be deposited in the treasury of the local authority. 93 February 12, 2019 Item #2 Page 40 of 42 Ch. 459 -6- ( c) Failure to pay an administrative fine pursuant to subdivision (a) shall not be punishable as an infraction or misdemeanor. Additional fines , fees, assessments, or any other financial conditions beyond those authorized in subdivision (a) shall not be assessed. (d) (1) A violation ofa local authority's sidewalk vending program that complies with Section 51038, or a violation of any rules or regulations adopted prior to January 1, 2019, that regulate or prohibit sidewalk vendors in the jurisdiction of a local authority, shall not be punishable as an infraction or misdemeanor, and the person alleged to have violated any of those provisions shall not be subject to arrest except when permitted under law. (2) Notwithstanding any other law, paragraph (1) shall apply to all pending criminal prosecutions under any local ordinance or resolution regulating or prohibiting sidewalk vendors. Any of those criminal prosecutions that have not reached final judgment shall be dismissed. ( e) A local authority that has not adopted rules or regulations by ordinance or resolution that comply with Section 51037 shall not cite, fine, or prosecute a sidewalk vendor for a violation of any rule or regulation that is inconsistent with the standards described in subdivision (b) Section 51038. (f) (1) When assessing an administrative fine pursuant to subdivision (a), the adjudicator shall take into consideration the person's ability to pay the fine. The local authority shall provide the person with notice of his or her right to request an ability-to-pay determination and shall make available instructions or other materials for requesting an ability-to-pay determination. The person may request an ability-to-pay determination at adjudication or while the judgment remains unpaid, including when a case is delinquent or has been referred to a comprehensive collection program. (2) If the person meets the criteria described in subdivision (a) or (b) of Section 68632, the local authority shall accept, in full satisfaction, 20 percent of the administrative fine imposed pursuant to subdivision (a). (3) The local authority may allow the person to complete community service in lieu of paying the total administrative fine, may waive the administrative fine, or may offer an alternative disposition. (g) ( l) A person who is currently serving, or who completed, a sentence, or who is subject to a fine, for a conviction of a misdemeanor or infraction for sidewalk vending, whether by trial or by open or negotiated plea, who would not have been guilty of that offense under the act that added this section had that act been in effect at the time of the offense, may petition for dismissal of the sentence, fine, or conviction before the trial court that entered the judgment of conviction in his or her case. (2) Upon receiving a petition under paragraph ( 1 ), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1 ), the court shall grant the petition to dismiss the sentence or fine, if applicable, and dismiss and seal the conviction, because the sentence, fine, and conviction are legally invalid. 93 February 12, 2019 Item #2 Page 41 of 42 -7-Ch. 459 (3) Unless requested by the petitioner, no hearing is necessary to grant or deny a petition filed under paragraph (1 ). (4) If the court that originally sentenced or imposed a fine on the petitioner is not available, the presiding judge shall designate another judge to rule on the petition. (5) Nothing in this subdivision is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner. (6) Nothing in this subdivision or related provisions is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this chapter. SEC. 3. The Legislature finds and declares that Section 2 of this act, which adds Section 51038 to the Government Code, imposes a limitation on the public's right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest: The Legislature finds and declares that in order to protect the privacy of a sidewalk vendor with regard to his or her California driver's license or identification number, individual taxpayer identification number, or municipal identification number, when that number is collected in lieu of a social security number for purposes of the issuance of a permit or business license, it is necessary that the sidewalk vendor's number be confidential, except as provided in this act. 0 93 February 12, 2019 Item #2 Page 42 of 42 To the members of the: Cl°9' COU~ll / A~~ ~~CA ✓-~C1_ Date~ CM _y_ COO j/_ Feb. 12,2019 Council Memorandum To: Honorable Mayor From: Gary T. Barberio, fV:>::4W-~!-4o-'WI Manager Via: Scott Chadwick, Ci Re: Responses to Questions from Feb. 12 City Council Briefings {city of Carlsbad Special Agenda Item No.'s 1-3 -Beach Preservation Committee, Planning Commission, and Traffic Safety Commission Appointments Question: Should an applicant being considered for appointment to a Commission or Committee be disqualified from consideration based on the fact that he/she has a relationship with certain organizations in the city? Answer: No. The city is not aware of any specific information related to any individual applicant and organization that would create a conflict of interest such that the applicant could not fulfill the mandates of serving on a Com~ission or Committee. Therefore, no current applicant should be generally disqualified from consideration by the City Council. That is not to say that, if appointed to a Commission or Committee, an applicant could have a conflict of interest on specific items and/or issues that may come before the Commission or Committee. If that were to occur, the selected applicant must recuse themselves from participating in those items. To help ensure that no conflict of interest issue arises, all members of Commissions and Committees receive ethics training, are subject to the California Political Reform Act and must file a Statement of Economic Interests annually. Because the city and the City Council may not have all relevant information to judge an applicant's potential conflicts of interest, at the meeting, City Council Members are free to ask any applicant whether or not he/she is aware of any information that would pose a conflict of interest if he/she were selected to serve on a Commission or Committee. ' City Manager's Office City Hall 1200 Carlsbad Village Drive I Carlsbad, CA 92008 I 760-434-2820 t Honorable Mayor Hall and Members of the City Council Feb. 12,2019 Page 2 Regular Agenda Item No. 1-Request for Proposals to Sell the Property Located at 3701 Catalina Drive Question: Can the State density bonus law or SB 35 be applied to this site? Answer: No. State density bonus law requires a housing development of at least five dwelling units to be eligible for a density bonus. SB 35 is a permit streamlining law for projects of two or more residential dwelling units that dedicate at least SO percent of the units for low-income households. Based on the size of the property and the General Plan and Zoning designations, the property could only be developed with one single family dwelling. Therefore, this site would not be eligible for either program. Regular Agenda Item No. 2 -Amend Title 8 of the CMC by Repealing and Replacing Chapter 8.32 to Create a Sidewalk and Food Truck Vending Equipment Permit Program Question: Can our Ordinance apply to the lower seawall since it is State owned? Answer: Yes. With the building of the lower sea wall, the city assumed the maintenance and operations responsibilities for the lower seawall area. The Parks & Recreation and Public Works Departments perform routine maintenance of the surface via the parks services contract and the street sweeping contract. The Public Works Department is also developing permits, and plans & specs for a project which will refurbish the upper walkway and the switchback stairs, and provide patching to the lower seawall walkway. The city also has authority to regulate allowed uses on both the upper and lower seawall walkways. Specifically to the lower seawall area, the Carlsbad Municipal Code regulates this area as follows: 11.32.070 Carlsbad seawall-Pedestrians only. The Carlsbad seawall sidewalk at the base of the bluff adjacent to Carlsbad State Beach between Tamarack Avenue and Pine Street shall be limited to pedestrians only. No person shall ride skateboard, inline skates, roller skates, toy vehicle, coaster, or similar form of transportation on the Carlsbad seawa ll sidewalk. Law enforcement personnel shall be exempt from the provision of this section when in the performance oftheir duties. {Ord. CS-139 § 3, 2011; Ord. NS-152 § 1, 1991; Ord. 3222 § 2, 1987) Honorable Mayor Hall and Members of the City Council Feb. 12,2019 Page 3 Regular Agenda Item No. 3 -Appeal of Building Permit CB00-3222 Expiration, 3275 Roosevelt Street Question: Can staff ple~se provide a copy of the original building permit CB00-3222, and any other discretionary review approval documents? Answer: Please see attached documents. Attachments: 1) Eo111111erclal lndast rlal Permit, Permit No. CB003222 2.).AgeAaa Bill Ne. 306, elated 03/02/~~, Wltli ARC Resolution Nos. 305, 306, 307 cc: Celia Brewer, City Attorney Elaine Lukey, Chief Operations Officer Marissa Kawecki, Deputy City Attorney February 12, 2019 Sidewalk & Food Truck Vending Draft Ordinance Recommended Action/Options 1.Introduce proposed ordinance for adoption: Repeal and replace CMC chapter 8.32 with a comprehensive sidewalk and food truck vending program 2.Revisit proposed ordinance for introduction at a future meeting, after community outreach and/or Council-directed modifications 3.Maintain status quo: No enforceable ordinance against sidewalk vendors; repeal unenforceable CMC provisions with general municipal code update What is SB 946? •Passed 9/24/18, effective 1/1/19 •Prohibits local authorities from regulating sidewalk vendors in all public locations and right-of-ways, with limited exceptions; N/A to food truck vendors •Cities need not adopt “a new program” to regulate sidewalk vendors if existing program “substantially complies” with the bill Impact of SB 946 •Cities may NOT impose: •A blanket ban on vending in public right-of-ways, public parks or residential zones •Restrictions motivated by a desire to protect pre-existing businesses •“Unduly restrictive” operating hours not imposed on surrounding businesses •Vendor caps or restrictions on vendors to a designated area, unless “directly related to objective health, safety or welfare concerns” •Criminal penalties; only allows for limited administrative penalties Impact of SB 946 •Cities MAY impose: •Limited regulations through a permitting or licensing program; must be “directly related to objective health, safety or welfare concerns” •Time, place and manner restrictions on vending in public parks allowed only if: 1.Directly related to objective health, safety or welfare concerns; 2.Necessary to ensure the public’s use and enjoyment of natural resources and recreational opportunities; and/or 3.Necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park Carlsbad’s Current Vending Law (CMC 8.32) •Bans commercial vending of food and merchandise on public sidewalks and right of ways •Food truck vending limited to 10 minutes at one place; not permitted in commercial or school zones; additional rules for ice cream trucks •Violations charged as an infraction •Exceptions: Sidewalk sales, street fairs, special event permits Proposed Ordinance: Purpose and Intent •Ensure city complies with SB 946 •Implement a comprehensive and uniform vending permitting scheme with clear guidelines for both sidewalk and truck vendors •Encourage diverse ethnic groups and entrepreneurs to actively participate in the Carlsbad business community •Create more vending opportunities for the public/recipients •Preserve Carlsbad’s “core values” Proposed Ordinance: Overview •Clearly defines “sidewalk vendor” and “food truck vendor;” does not regulate services per existing CMC 8.32 •Implements a vending equipment permitting program; business license also required per existing law •Incorporates legally viable time, place and manner restrictions to provide useful tools to regulate vending, as needed •Protects sensitive areas: high traffic areas, schools, beaches, parks •Modeled after other Southern California vending ordinances Proposed Ordinance: Preserved CMC Provisions •Existing CMC 8.32 provisions: Ice cream trucks, sidewalk sales, street fairs, selling/solicitation on private property •CMC 11.32.030: “Unlawful Acts” in city’s beaches and parks; park and facility use permits and special event permits •CMC 5.04, 5.08: Business licensing requirements Proposed Ordinance: Exemptions •Free speech activities •Nonprofits and other license and tax-exempt businesses •Charitable, religious, patriotic, or philanthropic solicitations/donations/sales •Community organizations/events approved by CM Proposed Ordinance: Permitting Program •Finance will issue vending equipment permits; addendum to business licensing application: –Detailed owner and operator information; vending equipment description; vending time/location –Proof of insurance; county health and state tax certifications –Release and indemnification requirements , Proposed Ordinance: Enforcement •Code Enforcement can issue admin. cites for both sidewalk vendors and food truck vendors –Admin. fine schedule set per SB 946 –Different schedule for permit vs. non-permit holders –Impoundment of vending equipment •Police can issue infraction cites for food truck vendors Proposed Ordinance: Staff /Fiscal Impact •Affected Departments: Finance, Risk Manager, Code Enforcement, Police, City Attorney •Cost off-setting: $80 business license fee; no proposed vending equipment permit fee at this time •Will request additional staff as necessary Next Steps, if ordinance adopted: •Train affected departments on implementation and enforcement of ordinance (City Attorney’s Office) •Create a map depicting allowable sidewalk and food truck vending areas •Research alternative on-site citation systems (Code Enforcement) •Public outreach/education Recommended Action/Options 1.Introduce proposed ordinance for adoption: Repeal and replace CMC chapter 8.32 with a comprehensive sidewalk and food truck vending program 2.Revisit proposed ordinance for introduction at a future meeting, after community outreach and/or Council-directed modifications 3.Maintain status quo: No enforceable ordinance against sidewalk vendors; repeal unenforceable CMC provisions with general municipal code update