The City finds that the vending of prepared or pre-packaged
foods, goods, and/or wares at semi-permanent locations on public sidewalks
and rights-of-way may pose unsafe conditions and special dangers to
the public health, safety, and welfare of residents and visitors.
The purpose of this Chapter is to implement regulations on both roaming
and stationary sidewalk vending that protect the public health, safety,
and welfare of the community while complying with the requirements
of general state law, as amended from time to time, to promote safe
vending practices, prevent safety, traffic, and health hazards, and
preserve the public peace, safety, and welfare of the community.
(Ord. 717 § 2, 2019; Ord. 719 § 2, 2019)
For purposes of this Chapter, the following definitions apply:
means a location operated in accordance with Chapter 10.5
of Division 17 of the Food and Agricultural Code and any regulations
adopted pursuant to that Chapter.
means the City of Indian Wells.
means the City Manager or designee as defined in Section 2.04.080 of the City's Municipal Code. Any role, responsibility or authority granted by this Chapter to the City Manager may be delegated by the City Manager to any City employee, agent or officer.
means any location at which a sidewalk vendor is located
for more time than is necessary to complete a transaction.
means the area within 500 feet from the outside border of
a lot or lots on which the subject activity is occurring, or with
respect to activities occurring within the public right-of-way, the
area within 500 feet from the outer border of the subject right-of-way.
means a paved path owned by the City and held open for pedestrian
travel that provides public access between two points and contains
a minimum of 14 feet of width that is other than a sidewalk.
means a sidewalk vendor who moves from place to place and
stops only to complete a transaction.
means that portion of a highway, other than the roadway,
set apart by curbs, barriers, markings or other delineation, specifically
designed for pedestrian travel that is improved (i.e., with concrete,
cement, asphalt, or another similar, permanent surface) and owned
in fee or held as an easement by the City or other public entity.
means a person who sells, offers to sell, operates, engages
in or carries on a food or merchandise vending business from a pushcart,
stand, display, pedal-driven cart, wagon, showcase, rack, or other
non-motorized conveyance, or from one's person, upon a public
sidewalk or other public pedestrian path.
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.
means a permit issued by the City 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. Without limiting the nature
of the foregoing, any activity lawfully conducted at the Indian Wells
Tennis Garden shall be deemed a special temporary use that is conducted
pursuant to a temporary special permit.
(Ord. 717 § 2, 2019; Ord. 719 § 2, 2019)
All sidewalk vendors shall obtain a sidewalk vending permit
from the City prior to engaging in any sidewalk vending activities.
The following information shall be required as part of the application
for the sidewalk vending permit.
(a)
Name,
current mailing address, and phone number of the vendor; and
(b)
If
the vendor is an agent of an individual, company, partnership, or
corporation, the name and business address of the principal; and
(c)
A
description of the merchandise/goods to be offered for sale or exchange,
and the days/hours of sales; and
(d)
Either:
(1)
A copy of the California seller's permit with the sales tax
number issued by the California Department of Tax and Fee Administration
to the vendor, and
(2)
A copy of the valid California Driver's license issued to the
vendor, or
(3)
A copy of the individual taxpayer identification number issued to
the vendor, or
(4)
A municipal identification number. Any of the foregoing identification
number(s) or license(s) collected shall not be available to the public
for inspection and shall remain confidential and 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;
(e)
If
preparing or selling food, a copy of the Riverside County Environmental
Health Department permit issued to the vendor; and
(f)
If
the vendor proposes to be a sidewalk vendor, a description or site
plan map of the proposed location(s) where vending will take place,
showing that the sidewalk location maintains a minimum of 36 inches
of accessible route area without encroaching onto any adjacent private
property or onto the roadway, in compliance with the Americans with
Disabilities Act; and
(g)
An
encroachment permit pursuant to Chapter 12.04.040 of the Indian Wells
Municipal Code; and
(h)
For
stationary sidewalk vendors, a public liability policy, including
products liability insurance, issued by an insurance company approved
by the City with limits of one million dollars ($1,000,000.00) each
person, two million dollars ($2,000,000.00) each occurrence for personal
and one million dollars ($1,000,000.00) each occurrence for property
damage, or equivalent cash, certified check or cashier's check,
in favor of the City, to insure the City against any and all liability
of every nature whatsoever connected directly or indirectly with the
applicant's activities. All insurance companies affording coverage
shall be required to add the City as an additional insured under their
insurance policy. A copy of the policy endorsement shall be provided
to the City. A certificate of insurance, providing evidence of coverage
in compliance with this Chapter shall be supplied to the City prior
to issuance of the permit; and
(i)
A
certification by the vendor that to his or her knowledge and belief,
the information contained in the application is true; and
(j)
Such
other information reasonably required by the City Manager.
(Ord. 717 § 2, 2019; Ord. 719 § 2, 2019)
(a)
At
the time the application or renewal application is filed, the applicant
shall pay the permit processing fee established by separate resolution
of the City Council. Upon acceptance of a complete sidewalk vendor
permit application, including the applicable application fee, the
City Manager shall conduct an investigation to determine compliance
with this Chapter and shall make such determination within no more
than 30 days of acceptance to approve or deny the application. The
City shall provide the applicant with written notice of his or her
decision to the address indicated in the application.
(b)
The
City Manager may deny an application for a permit if he or she makes
any of the following findings:
(1)
The applicant has failed to provide any of the required information.
(2)
The applicant has made one or more material misstatements in the
application for a permit.
(3)
The applicant does not have a valid social security card or valid
California Driver's license; or valid individual taxpayer identification
number; or a municipal identification number.
(4)
The applicant's vending operation, as described in the application,
is inconsistent with the standards, conditions, and requirements of
this Chapter.
(5)
The applicant is required to register under the provisions of California
Penal Code Section 290.
(6)
Within three years of the date of the application, the applicant
has been convicted in a court of competent jurisdiction or pled nolo
contendere to any felony offense involving the sale of a controlled
substance specified in California Health and Safety Code Section 11054,
11055, 11056, 11057 or 11058, or at the time of application is on
probation or parole for any offenses set forth in this section for
an offense that was committed within three years of the date of the
application.
(7)
It is determined that the applicant does not possess all Federal,
State, County, and local permits and licenses necessary to engage
in the activity in which he or she seeks to engage.
(c)
If
the application is denied, the reason(s) for disapproval shall be
noted on the application, and the applicant shall be notified that
his or her application is denied and that no permit will be issued.
Notice shall be mailed to the applicant at the address shown on the
application form.
(d)
Exemptions.
A sidewalk vending permit shall not be required for the following
activities:
(1)
The sale of agriculture products on the site where the product is
grown.
(2)
Catering for private parties held exclusively on private property
and not open to the general public.
(3)
Any event permitted pursuant to a lawfully issued temporary event
permit, including, but not limited to, a certified farmers'
market, swap meet, street fair, outdoor concert, sport league opening
day, and a business sidewalk sale.
(e)
Term of Permit. A sidewalk vending permit issued pursuant to this Chapter shall be valid for the same time period, and shall be renewed at the same time, as the business license issued/renewed to the sidewalk vendor pursuant to Chapter 5.01 of this Code.
(f)
Transferability.
A sidewalk vending permit shall not be transferable to any other entity
or person and is valid only as to the original applicant for the term
stated.
(Ord. 717 § 2, 2019; Ord. 719 § 2, 2019)
Sidewalk vendors (whether stationary or roaming) shall comply
with the following:
(a)
The sidewalk vendor must, in addition to the permit required by this Chapter, possess a current, valid business license pursuant to Chapter 5.01 of this Code, must not be delinquent in its payment of its business license fee, and shall operate pursuant to all requirements of Section 5.48.030 and this Chapter; and
(b)
In
residential zones, sidewalk vending hours shall be conducted limited
to the hours of 8:00 a.m. and 7:00 p.m.; and
(c)
In
non-residential zones, sidewalk vending shall be conducted at any
time during which any other business or use on the same street may
lawfully operate. For purposes of the foregoing, "the same street"
shall mean that portion of the street on which the sidewalk vending
is occurring, and extending in both directions to the nearest intersections
in each direction; and
(d)
The
sidewalk vendor maintains the vending area in a clean, orderly, and
sanitary condition; and
(e)
The
sidewalk vendor location does not block entrances to private buildings,
private driveways, parking spaces or building windows; and
(f)
No
sidewalk vending shall occur within 10 feet of a fire hydrant, fire
escape, bus stop, loading zone, handicapped parking space or access
ramp, fire station driveway, or police station driveway; and
(g)
No
tables, chairs, fences, shade structures, other site furniture, or
any freestanding signs shall be permitted in conjunction with the
sidewalk vending activities; and
(h)
The
sidewalk vendor shall not attach or use any water lines, electrical
lines, or gas lines during vending operations; and
(i)
Exterior
storage or display of refuse, equipment, materials, goods, wares,
or merchandise associated with the sidewalk vendor is prohibited;
and
(j)
No
sidewalk vending shall occur within the immediate vicinity of a certified
farmers' market, a swap meet, or a temporary licensed event,
including any event lawfully conducted at the Indian Wells Tennis
Garden; and
(k)
The
sidewalk vendor shall not conduct sales from a public street, including
the median or roadway; and
(l)
No
sound amplification equipment, music or live entertainment may be
used in conjunction with any sidewalk vendor activity; and
(m)
The
sidewalk vendor must not violate any County Health Department requirements
(i.e., may not sell food prepared on site, food requiring refrigeration,
or unpackaged and/or opened food; all food and drinks must come from
an approved source or from a facility permitted with the County Environmental
Health Services); and
(n)
Sidewalk vendors that operate "mobile food facilities" shall comply with all applicable provisions of Chapter 8.42 of the Indian Wells Municipal Code; and
(o)
Vending
shall not be allowed on any unimproved surface; and
(p)
Sidewalk vending shall not be allowed within the established corner cutback area of any intersection as defined by Section 21.50.040(a) of the City's Zoning Code.
(Ord. 717 § 2, 2019; Ord. 719 § 2, 2019)
Stationary sidewalk vendors shall comply with the following, in addition to the requirements of Section 5.48.050:
(a)
Stationary
sidewalk vendors shall be prohibited from operating or establishing
in any areas of the City that is zoned exclusively as residential;
and
(b)
The
stationary sidewalk vendor's vending operation must leave a
minimum of 36 inches of accessible path of travel along the sidewalk,
without obstruction and without encroaching onto any adjacent private
property or onto the roadway.
(Ord. 717 § 2, 2019; Ord. 719 § 2, 2019)
(a)
A
sidewalk vendor permit issued under this Chapter may be suspended
or, in the City Manager's discretion, rescinded by the City
Manager for any one or more of the following causes:
(1)
Fraud or misrepresentation in the course of vending;
(2)
Fraud or misrepresentation in the application for the permit;
(3)
Vending in a manner that creates a public nuisance or constitutes
a danger to the public; or
(4)
Vending in violation of any one or more of the provisions of this
Chapter; or
(5)
Failure to pay the applicable business license fee.
(b)
Notice
of the suspension or rescission of a sidewalk vendor permit issued
under this Chapter shall be mailed, postage prepaid, to the holder
of the sidewalk vendor permit at his or her last known address.
(c)
No
person whose street vending permit has been revoked pursuant to this
Chapter shall be issued a street vending permit for a period of two
years following the date revocation becomes final.
(Ord. 717 § 2, 2019; Ord. 719 § 2, 2019)
In the event that any applicant or permittee desires to appeal from any order, rescission, or other ruling of the City Manager's designee made under the provisions of this Chapter, other than a decision of a Hearing Officer following an appeal pursuant to Section 1.20.070 et seq., of this Code, such applicant or any other person aggrieved shall have the right to appeal such action or decision to the City Manager within 15 days after the notice of the action or decision has been mailed to the person's address as shown on the permit application. An appeal shall be taken by filing with the City Clerk a written appeal statement setting forth the grounds for the appeal, along with the City's appeal fee, which shall be established by City Council resolution. The filing of the appeal shall stay the enforcement of any decision suspending or rescinding the permit. The City Clerk shall transmit the written statement to the City Manager within 10 days following its filing and payment of the appeal fee, and the City Manager shall set a time and place for a hearing on appeal. A hearing shall be set not later than 60 days from the date of filing of the applicant's written appeal statement with the police department. Notice of the time and place of the hearing shall be given to the appellant in the same manner as provided for the mailing of notice of suspension or rescission at least five days prior to the date set for the hearing. At the hearing, the permittee and the City Manager's designee shall be entitled to legal representation and may present relevant evidence, testify under oath, and call witnesses who shall testify under oath. The City Manager shall be entitled to legal representation and may call witnesses who shall testify under oath. The City Manager shall not be bound by the traditional rules of evidence in a hearing, except that hearsay evidence may not be the sole basis for the decision of the City Manager. The City Manager may continue the hearing as deemed necessary. The decision of the City Manager, or designee, on the appeal shall be the final administrative decision of the City and binding on all parties concerned.
(Ord. 717 § 2, 2019; Ord. 719 § 2, 2019)
(a)
It
is unlawful for any person to violate any provision or fail to comply
with any requirements of this Chapter. A violation of this Chapter
shall by punished by:
(b)
A violation of vending without a sidewalk vending permit may, in lieu of the penalties set forth in subsection (a) set forth above, be punished by:
(c)
If an individual is subject to subsection (b), set forth above, for vending without a sidewalk vending permit, upon the individual providing proof of a valid permit issued by the City, the administrative fines set forth in this Chapter shall be reduced to the administrative fines set forth in subsection (a), respectively.
(d)
Except as specifically provided in this Chapter, the process for issuing, administering and collecting administrative citation fines shall be as provided in Indian Wells Municipal Code Chapter 1.20. The proceeds of any administrative fines assessed pursuant to this Chapter shall be deposited in the treasury of the City.
(e)
Failure
to pay an administrative fine assessed under this Chapter shall not
be punishable as an infraction or misdemeanor. Additional fines, fees,
assessments, or any other financial conditions beyond those authorized
in this Chapter shall not be assessed.
(f)
Any
violation of this Chapter shall not be punishable as an infraction
or misdemeanor, and any person alleged to have violated any provisions
of this Chapter shall not be subject to arrest except when otherwise
permitted under law.
(g)
When assessing an administrative fine pursuant to this Chapter, the Hearing Officer, as defined in Indian Wells Municipal Code Section 1.20.020 shall take into consideration the person's ability to pay the fine. The City 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.
(1)
If the person meets the criteria described in subdivision (a) or
(b) of Government Code Section 68632, the City shall accept, in full
satisfaction, twenty percent (20%) of the administrative fine imposed
pursuant to this Chapter.
(2)
The Hearing Officer 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.
(h)
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 SB 946 had SB
946 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.
(Ord. 717 § 2, 2019; Ord. 719 § 2, 2019)
In accordance with applicable rules and regulations, any peace
officer or code enforcement officer is authorized to seize as evidence
any item used in the commission of a violation of any provision of
this Chapter. Seized items shall be removed and stored in accordance
with law.
(Ord. 717 § 2, 2019; Ord. 719 § 2, 2019)
