Article 9 Pushcart and Other Sidewalk Vendors

No person, either for themselves or any other person, shall engage in any sidewalk vendor activities within the city without first applying for and receiving a permit from the director of finance, or the director of finance's designee, under this article.

A written application for a sidewalk vendor permit shall be filed with the director of finance, on a form provided by the city, and shall contain the following information:

The name, age, address, and telephone number of the person applying to become a sidewalk vendor;

The name, address, and telephone number of the person who will be in charge of any roaming sidewalk vendors, sidewalk vending activity and/or be responsible for the person(s) working at the sidewalk vending receptacle;

The name, address, and telephone number of all persons that will be employed as roaming side-walk vendors or at a sidewalk vending receptacle;

The number of sidewalk vending receptacles the sidewalk vendor will operate within the city under the permit;

The location(s) in the city where the sidewalk vendor intends to operate;

The day(s) and hours of operation the sidewalk vendor intends to operate at such location(s);

Whether the vendor intends to operate as a stationary sidewalk vendor or a roaming sidewalk vendor and, if roaming, the intended path of travel;

The dimensions of the sidewalk vendor's sidewalk vending receptacle(s), including a picture of each sidewalk vending receptacle operating under the permit and any signs that will be affixed thereto;

Whether the sidewalk vendor will be selling food, merchandise, or both;

If the sidewalk vendor is selling food, a description of the type of food to be sold, whether such foods are prepared on site, whether such foods will require a heating element inside or on the sidewalk vending receptacle for food preparation, and the type of heating element, if any;

If the vendor is selling merchandise, a description of the merchandise to be sold;

(12)

A copy of the health permit required for any sidewalk vendors selling food, as required by Chapter II of Title 8 of this Code;

(13)

Proof the person possesses a valid California Department of Tax and Fee Administration seller's permit which notes the city as a location or sublocation, which shall be maintained for the duration of the sidewalk vendor's permit;

(14)

An acknowledgment that the sidewalk vendor will comply with all other generally applicable local, state, and federal laws;

(15)

A certification that, to their knowledge and belief, the information contained within the application is true;

(16)

An agreement by the sidewalk vendor to defend, indemnify, release and hold harmless the city, its city council, boards, commissions, officers and employees from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to the permit or the vendor's sidewalk vending activities. This indemnification shall include, but not be limited to, damages awarded against the city, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, or proceeding whether incurred by the permittee, city, and/or the parties initiating or bringing such proceeding;

(17)

An acknowledgement that use of public property is at the sidewalk vendor's own risk, the city does not take any steps to ensure public property is safe or conducive to the sidewalk vending activities, and the sidewalk vendor uses public property at their own risk;

(18)

An acknowledgement that the sidewalk vendor will obtain and maintain throughout the duration of any permit issued under this article any insurance and endorsement therefore required by this article;

(19)

Any other relevant information required by the director of finance, or the director of finance's de-signee.

Each application for a sidewalk vendor permit shall be accompanied by a nonrefundable application fee as established by resolution of the city council. The application and any permit issued therefor are only applicable to the individual(s) named on the application.

Business license required. No person, either for themselves or any other person, shall engage in any sidewalk vendor activities within the city without first obtaining and thereafter maintaining a business license pursuant to Article 5 of Chapter I this title.

(Ord. No. 20-04, § 2, 3-3-20)

§ 9-191.3 Issuance of permit.

Within 30 calendar days of receiving a complete application, the director of finance acting as the issuing officer may issue a sidewalk vendor permit, with appropriate conditions, as provided for herein, if he or she finds based on all of the relevant information that:

The conduct of the sidewalk vendor will not unduly interfere with traffic or pedestrian movement, or tend to interfere with or endanger the public peace or rights of nearby residents to the quiet and peaceable enjoyment of their property, or otherwise be detrimental to the public peace, health, safety or general welfare;

The conduct of the sidewalk vendor will not unduly interfere with normal governmental or city operations, threaten to result in damage or detriment to public property, or result in the city incurring costs or expenditures in either money or personnel not reimbursed in advance by the vendor;

The conduct of such sidewalk vending activity will not constitute a fire hazard, and all proper safety precautions will be taken;

The conduct of such sidewalk vending activity will not require the diversion of police officers to properly police the area of such activity as to interfere with normal police protection for other areas of the city;

The sidewalk vendor has paid all previous administrative fines connected in any way with a previous violation of this article;

The sidewalk vendor has not had a permit revoked within the past 12 months;

The sidewalk vendor's application contains all required information;

The sidewalk vendor has not made a materially false, misleading or fraudulent statement of fact to the city in the application process;

The sidewalk vendor has satisfied all the requirements of this chapter;

The sidewalk vendor has paid all applicable fees as set by city council resolution;

The sidewalk vendor's sidewalk vending receptacle and proposed activities conform to the requirements of this chapter;

(12)

The sidewalk vendor provides a policy of liability insurance in a form and with companies approved by the city and approved to do business in California, which policy names the City of Costa Mesa, its officers, employees and agents as additional insureds in a minimum amount of one million dollars ($1,000,000.00) combined single limit; and

(13)

The sidewalk vendor has satisfactorily provided all information requested by the director of finance, to consider the vendor's application.

A sidewalk vendor permit is nontransferable. Any change in ownership or operation of a sidewalk vendor or sidewalk vending receptacle requires a new permit under this article.

All permits issued under this article shall expire 12 months from date of issuance.

(Ord. No. 20-04, § 2, 3-3-20)

§ 9-191.4 Operating conditions.

All sidewalk vendors are subject to the following operating conditions when conducting sidewalk vending activities:

All food and merchandise shall be stored either inside or affixed to the sidewalk vendor receptacle or carried by the sidewalk vendor. Food and merchandise shall not be stored, placed, or kept on any public property. If affixed to the sidewalk vendor receptacle, the overall space taken up by the sidewalk vendor receptacle shall not exceed the size requirements provided in this section;

The sidewalk vendor permit shall be displayed conspicuously at all times on the sidewalk vending receptacle or the sidewalk vendor's person. If multiple sidewalk vendors are staffing a sidewalk vendor receptacle or working as roaming sidewalk vendors, each person shall wear their permit on their person in a conspicuous manner;

Sidewalk vendors shall not leave their sidewalk vending receptacle unattended to solicit business for their sidewalk vending activities;

§ 9-191.5 Prohibited activities and locations.

All signage and advertising related in any way to the sidewalk vendor shall be attached to the sidewalk vending receptacle, if any, or the sidewalk vendor's person, and may not be attached or affixed to any adjacent public or private property;

(e)

Sidewalk vendors shall not use any electrical, flashing, wind powered, or animated sign;

(f)

Sidewalk vending receptacles shall not be stored on any public property and shall be removed when not in active use by a sidewalk vendor;

(g)

No sidewalk vending receptacle shall be loaded, unloaded, stocked or restocked with merchandise and/or food while on any public property, unless specifically authorized to do so by the terms of the permit, or on any publicly accessible private property without the prior written permission signed by the owner of that property;

(h)

All sidewalk vendors shall allow a police officer, firefighter, code enforcement officer, park ranger, health inspector, or other government official charged with enforcing laws related to the sidewalk vendor's activities, at any time, to inspect their sidewalk vending receptacle for compliance with the size requirements of this article and to ensure the safe operation of any heating elements used to prepare food;

(i)

Sidewalk vending receptacles and any attachments thereto shall not exceed a total height of four feet measured from the ground, a total width of four feet, and a total length of four feet, except that if equipped with an awning, umbrella or similar attachment designed to provide shade and/or shelter, such attachment shall be a minimum of seven feet high;

(j)

No sidewalk vending receptacle shall contain or use propane, natural gas, batteries, or other explosive or hazardous materials unless specifically authorized to do so by the terms an applicable health permit;

(k)

No sidewalk vendor may utilize any generator unless specifically authorized to do so by the terms of an applicable health permit;

(l)

If a sidewalk vending receptacle requires more than one person to conduct the sidewalk vending activity, all sidewalk vendors associated with the sidewalk vending receptacle shall be within five feet of the sidewalk vending receptacle when conducting sidewalk vending activities;

(m)

Sidewalk vendors that sell food shall have in their possession at all times they are conducting sidewalk vending activities a valid permit issued by the health department as required by Chapter II of Title 8 of this Code;

(n)

Sidewalk vendors that sell food shall maintain a trash container in or on their sidewalk vending receptacle and shall not empty their trash into public trashcans. The size of the vendor's trash container shall be taken into account when assessing the total size limit of a sidewalk vending receptacle. Sidewalk vendors shall not place any trash receptacle in or on any public property or right-of-way. Sidewalk vendors shall not leave any location without first picking up, removing, and disposing of all trash or refuse from their operation;

(o)

Sidewalk vendors shall not discharge any solid or liquid matter onto any public property, and shall immediately clean up any food, grease or other liquid or item related to their sidewalk vending activities that falls on or is otherwise discharged onto public property;

(p)

Sidewalk vendors shall maintain a minimum of a four foot clear accessible path free from obstructions, including sidewalk vending receptacles and customer queuing area;

(q)

Sidewalk vendors shall not create or set up any seating or table area within the public right-of-way;

(r)

Sidewalk vendors shall comply with the noise standards set forth in Chapter XIII of Title 13 of this Code;

(s)

Sidewalk vendors shall ensure that all required insurance including any endorsement is in effect prior to conducting any sidewalk vendor activities and maintained for the duration of the permit;

(t)

Upon request, sidewalk vendors must provide a receipt for any merchandise or food sold to a customer; and

(u)

Sidewalk vendors shall ensure that any employee thereof or other person engaged in any sidewalk vending activity on their behalf must conform to the applicable provisions of state law regarding the minimum ages and hours of employment.

(Ord. No. 20-04, § 2, 3-3-20)

Sidewalk vendors shall comply with all operating conditions including those conditions set forth in section 9-191.4.

Sidewalk vending receptacles shall not touch, lean against or be affixed at any time to any building or structure including but not limited to lampposts, parking meters, mailboxes, traffic signals, fire hydrants, benches, bus shelters, newsstands, trash cans or traffic barriers.

Sidewalk vendors shall not engage in any of the following activities:

Renting merchandise to customers;

Vending directly to vehicles or persons in vehicles;

Selling alcohol, marijuana, tobacco products, products that contain nicotine and/or marijuana or any product used to smoke/vape nicotine or marijuana, and/or weapons, including, but not limited to, firearms, ammunition, explosives including fireworks, knives, mace, and/or pepper spray, and/or any item of adult oriented material as defined in section 13-130 under adult bookstore/novelty store;

Using an open flame on or within any sidewalk vending receptacle;

Using an electrical outlet or power source that is owned by the city or another person other than the sidewalk vendor;

Conducting sidewalk vending activities:

On sidewalks or pathways within residentially zoned areas, between sunset and 8:00 a.m. daily, unless within a park that is otherwise open pursuant to section 12-23;

Anywhere in any park while the park is closed pursuant to the provisions of section 12-23; or

In such a manner as to block access to a fire hydrant.

Continuing to offer food or merchandise for sale, following, or accompanying any person who has been offered food or merchandise after the person has asked the sidewalk vendor to leave or after the person has declined the offer to purchase food or merchandise;

Knowingly making false statements or misrepresentations during the course of offering food and/or merchandise for sale regarding those items of food and/or merchandise;

Blocking or impeding the path of the person(s) being offered food or merchandise to purchase;

Making any statement, gesture, or other communication which a reasonable person in the situation of the person(s) being offered food or merchandise to purchase would perceive to be a threat and which has a reasonable likelihood to produce in the person(s) a fear that the threat will be carried out;

Touching the person(s) being offered food or merchandise without that person(s)' consent;

(12)

Interfering with any person engaged in or observing an organized recreational or sporting activity being conducted in or adjacent to any park or other public area, by blocking, distracting or impeding the movement or view of any such person or otherwise disrupting the recreational or sporting activity; and/or

(13)

Placing sidewalk vending receptacles outside of any pathway or sidewalk when engaging in sidewalk vending activities.

Sidewalk vendors shall not engage in sidewalk vending activities at the following locations:

Any capital facility or any path or sidewalk adjacent thereto, including but not limited to the Civic Center, but not including civic center park;

Any public property that does not meet the definition of a sidewalk or pathway, including, but not limited to, any alley, trail, bike path, square, street, street end, or parking lot;

On any bike path, or on a mixed use path where both bicycles and pedestrians are permitted;

Stationary sidewalk vendors may not operate on any sidewalk or pathway that is less than eight feet wide;

Mobile sidewalk vendors may not operate on any sidewalk or pathway that is less than four feet wide;

On any sidewalk, pathway or other area while public access to such area is posted as being closed or otherwise limited;

During the time that the Orange County Fair is in session, following the posting of notice or otherwise being informed by the city that a specified city owned or controlled sidewalk or path immediately adjacent to the Fairgrounds is closed to vending, where the city manager has determined that temporary closure is necessary to protect the public health, safety and welfare due to pedestrian and/or vehicular congestion or similar occurrences;

Within Fairview Park at all times and within Lions Park during the times the annual Fish Fry is taking place, unless pursuant to the terms of a special event permit;

Within 200 feet of:

A police station,

A fire station,

Any capital facility, except as provided in subsection (d)(1),

Any construction activities in or on the public right-of way, and/or

A public or private school, a place of worship, and/ or a child daycare facility;

Within 100 feet of:

The intersection of a street and a sidewalk,

Any public picnic area, playground area or playground equipment,

Any police officer, firefighter, lifeguard or emergency medical personnel who are actively performing their duties or providing services to the public,

If vending food, a dog park, or

Jack Hammet Sports Complex;

Within 25 feet of a:

Public swimming pool,

Curb which has been designated as white, yellow, green, blue, or red zone, or a bus zone;

Automated teller machine,

Driveway, alley, or entrance to a parking lot or parking garage,

Entrance or exit to a building, structure or facility,

Stormwater catchment basin,

Trash receptacle, bike rack, bench, bus stop, restroom, or similar public use items,

Any public community center, athletic field, softball/baseball diamond, basketball court, handball court, pickleball court, tennis court, soccer field, golf course or volleyball court, or

The Costa Mesa Skatepark.

(e)

Stationary sidewalk vendors shall not sell food or merchandise or engage in any sidewalk vending activities on sidewalks or pathways within residentially zoned areas.

(Ord. No. 20-04, § 2, 3-3-20)

§ 9-191.6 Penalties.

Violations of this article shall not be prosecuted as infractions or misdemeanors and shall only be punished by civil citation issued pursuant to Article II of Title 1 subject to the limitations of this section;

Any violation of this article may be assessed an administrative fine in an amount authorized by Government Code section 51039 or any applicable successor section thereto as set forth in a schedule of fines adopted by resolution of the city council;

The issuing officer may rescind or revoke a permit issued to a sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations; and

The provisions and limitations of this section shall not apply to a violation of any other provision of this Code or other law or regulation, including, but not limited to, the California Retail Food Code.

(Ord. No. 20-04, § 2, 3-3-20)

§ 9-191.7 Appeals.

Appeals of civil citations shall be had pursuant to the administrative review provisions of Chapter II of Title 1.

A person cited may request an ability-to-pay determination, contest that there was a violation of this Code, that he or she is the responsible person, or otherwise appeal the citation by filing a request for an administrative review pursuant to section 1-42. Notwithstanding the time limits set forth in Chapter II of Title 1, any person requesting a hearing and ability-to-pay determination may file the request pursuant to Government Code section 51039(f)(1);

A person cited may file for a hardship waiver in accordance with section 1-44;

In addition to and notwithstanding the limitation of the powers set forth in Article II of Title 1, the hearing officer shall have the power to:

Reduce the fine based upon the person's ability to pay the fine, or

If the hearing officer finds the person meets the criteria described in subdivision (a) or (b) of Government Code section 68632, the hearing officer shall order the city to accept, in full satisfaction, 20% of the administrative fine imposed pursuant to this article;

All appeals of civil citations shall be conducted in accordance with section 1-46; and

Failure to pay an administrative fine pursuant to this article shall not be punishable as an infraction or misdemeanor, nor shall fines, fees, assessments, or any other financial conditions beyond those authorized by this article be assessed.