AGENDA ITEM
TO: HONORABLE MAYOR
AND MEMBERS OF THE CITY COUNCIL
FROM: CARLO TOMAINO
CITY MANAGER
BY: MATTHEW E. RICHARDSON
CITY ATTORNEY
SUBJECT:
title
AN ORDINANCE AMENDING CHAPTER 5.06 (“SIDEWALK VENDING”) AND CHAPTER 12.14 (“CAMPING AND STORAGE OF PERSONAL PROPERTY ON PUBLIC PROPERTY”) OF THE SIGNAL HILL MUNICIPAL CODE, RELATING TO SIDEWALK VENDING AND CAMPING
summary
Summary:
The City previously established a permit and licensing procedures related to sidewalk vending, and ensured compliance with federal, state, and local laws, such as food safety requirements and compliance with the Americans with Disabilities Act. Despite these standards, the City has seen a rise in unpermitted sidewalk vending and activities that pose unique risks to the health and safety of the public. Some sidewalk vendors establish large-scale operations that block the public right-of-way, empty trash and food waste on streets and sidewalks, and operate in unsanitary conditions. The first change to the City’s Municipal Code reflected in the proposed Ordinance is to amend the Sidewalk Vending Program to provide the City with the authority to impound vending equipment that poses an imminent environmental, health, or safety hazard.
The proposed Ordinance also seeks to amend the City’s Municipal Code to reflect recent decisions made by the United States Supreme Court. In recent years, two Ninth Circuit Court of Appeals decisions, Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031 (“Martin”) and Johnson v. City of Grants Pass (9th Cir. 2023) 72 F.4th 868 (“Grants Pass”), significantly affected the permissible scope of local regulation of public camping. On June 28, 2024, the Supreme Court overruled these decisions and opened the door for cities to again enforce laws regulating public camping. The references to Martin are now obsolete, requiring the City to amend its Code to reflect the current legal landscape. The proposed Ordinance removes any references to Martin and makes no addition to the City’s regulations of public camping.
Strategic Plan Goal(s):
Goal No. 2 Community Safety: Maintain community safety by supporting public safety services, and increasing emergency preparedness.
Goal No. 4 Infrastructure: Maintain and improve the City’s physical infrastructure, water system and recreational spaces.
recommendation
Recommendations:
1. Declare that the Ordinance is exempt from the California Environmental Quality Act (“CEQA”) pursuant to State CEQA Guidelines section 15061(b)(3) because it can be seen with certainty that there is no possibility that the Ordinance may have a significant effect on the environment. (14 Cal. Code Regs., § 15061(b)(3).) The Ordinance does not authorize any development or other activity that could result in a significant effect on the environment; and
2. Introduce an Ordinance, entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SIGNAL HILL AMENDING CHAPTER 5.06 (“SIDEWALK VENDING”) AND CHAPTER 12.14 (“CAMPING AND STORAGE OF PERSONAL PROPERTY ON PUBLIC PROPERTY”) OF THE SIGNAL HILL MUNICIPAL CODE, RELATING TO SIDEWALK VENDING AND CAMPING.
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Fiscal Impact:
There is a minimal fiscal impact to the City associated with the recommended action for sidewalk vending. Pending City Council approval of the Ordinance, an impound fee and appeal fee will be established by separate resolution to address the cost of storing impounded items and processing appeals to impoundment actions. The recommended amount of the proposed fees are currently being studied by City staff.
Background:
Sidewalk Vending
In 2018, the Governor signed Senate Bill 946 (“SB 946”) into law. SB 946, also known as the California Safe Sidewalk Vending Act, decriminalized sidewalk vending throughout the State and imposed requirements on cities and counties related to the regulation of sidewalk vendors. Chief among these requirements was the prohibition of assessing criminal penalties for violations of sidewalk vending regulations, as well as limiting the ability to prohibit sidewalk vendors in public parks and on public sidewalks.
Since January 1, 2019, sidewalk vending has been decriminalized throughout California. The City has since created a program with rules and regulations consistent with state law. This program, the Sidewalk Vending Program, imposed reasonable requirements on sidewalk vendors, including obtaining a City vending permit, procuring insurance, and limiting operations in certain areas, such as near major intersections, schools, houses of worship, public parks, and other governmental facilities.
In recent years, the City Council approved an ordinance establishing a Sidewalk Vending Program. The program created permit and licensing procedures, established reasonable restrictions on the location of sidewalk vending, and ensured compliance with federal, state, and local laws, such as food safety requirements and compliance with the Americans with Disabilities Act. In compliance with SB 946, the City allowed only administrative citations as penalties for violating the program.
Despite these standards, the City has seen a rise in unpermitted sidewalk vending and activities that pose unique risks to the health and safety of the public. Some sidewalk vendors establish large-scale operations that block the public right-of-way, empty trash and food waste on streets and sidewalks, and operate in unsanitary conditions. Due in part to the legislature’s efforts to decriminalize sidewalk vending activities, efforts to enforce the Sidewalk Vending Program via administrative citations have done little to deter repeat offenders and encourage compliance with applicable federal, state, county, and City laws and regulations.
To address these issues, the proposed Ordinance would amend the Sidewalk Vending Program to give the City the authority to impound vending equipment that poses an imminent environmental, health, or safety hazard. City officials would be authorized to impound sidewalk vending carts, food, cooking equipment, utensils, goods, or merchandise for the reasons listed in the proposed Ordinance. These measures are not criminal in nature and are intended to complement the County agencies, such as the Los Angeles County Department of Public Health (LACDPH), which can already impound items on the City’s behalf. Further, a sidewalk vendor will have the right to appeal an impoundment action and/or retrieve the impounded items, except for perishable items and items the City could not safely store.
Public Camping
In the 2019 Martin v. Boise decision, the Ninth Circuit held that the Cruel and Unusual Punishment Clause of the Eighth Amendment “prohibits the imposition of criminal penalties for sitting, sleeping or lying outside on public property for homeless individuals who cannot obtain shelter.” Subject to some exceptions, Martin prohibited cities from arresting homeless individuals for involuntarily sitting, lying or sleeping in public when the city does not provide a shelter bed in its “jurisdiction” for that potential arrestee.
Since then, the City has codified the holdings of Martin in the City’s regulation of public camping and the storing of personal property on public property. In order maintain compliance with the law, the City stated that enforcement of the public camping laws would be enforced in accordance with the holding in Martin.
The proposed Ordinance also seeks to amend the City’s Municipal Code to reflect recent decisions made by the United States Supreme Court. In recent years, two Ninth Circuit Court of Appeals decisions, Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031 (“Martin”) and Johnson v. City of Grants Pass (9th Cir. 2023) 72 F.4th 868 (“Grants Pass”), significantly affected the permissible scope of local regulation of public camping. On June 28, 2024, the Supreme Court overruled these decisions and opened the door for cities to again enforce laws regulating public camping.
In order to comply with the holding of Martin, the City directly incorporated the decision into its laws regulating public camping. Now, the references to Martin are obsolete, requiring the City to amend its Code to reflect the current legal landscape. The proposed Ordinance merely removes any references to Martin and makes no addition to the City’s regulations of public camping.
If approved by the City Council, the proposed Ordinance would be introduced this evening and return for a required Second Reading on August 27, 2024. The amended Sidewalk Vending Program would be effective September 27, 2024. The Community Development Department, in coordination with the City Manager, would manage the impoundment actions and process appeals as appropriate, and the Public Works Department would provide labor and storage for impoundment actions.
Analysis:
Sidewalk Vending:
The City’s Sidewalk Vending Program was adopted relatively recently. In the entire time that SB 946 has been in effect, however, there have been significant concerns related to unpermitted sidewalk vending. In an effort to encourage safe and responsible sidewalk vending, the City established an affordable permit price; however, very few vendors have obtained a permit. In all food vending operations, a permit from the LACDPH must first be obtained. However, hot food vendors on the street typically operate without an LACDPH permit as they are unable to meet the health and safety requirements, such as properly heating and cooling food, providing handwashing facilities, washing utensils and equipment, and disposing of used liquids.
Unpermitted vendors pose unique risks to the health, safety, and welfare of the public. Among these risks include vendors who set up commercial-style cooking operations at major intersections or in proximity to high-traffic areas. These vendors operate primarily in the late afternoon and nighttime hours multiple nights per week, often in the same location. These vendors typically sell products that are cooked, prepared, and sold on-site for immediate consumption. These vendors operate similar to a restaurant, but without complying with any health and safety codes. Some of these large-scale food vending operations serve food without a health permit, play loud music, operate at late hours (between 10:00 p.m. and 1:30 a.m. of the next day), dump greases and oils on the sidewalk or street, and block the safe paths of travel for pedestrians and persons with disability.
There are a number of unique risks posed by sidewalk vending on public health, safety, and welfare, including:
• Lack of proper food handling/preparation and storage, proper food temperature control, food sourcing, and unsanitary conditions;
• Obstruction of public right of ways in violation of the Americans with Disabilities Act;
• Unsafe pedestrian congestion on sidewalks and walkways;
• Accumulation of trash and debris on sidewalks, streets, and gutters and entering storm drains;
• Grease and residue on sidewalks resulting in potential ‘slip and fall’ incidents;
• Disposal of fats, oils, and grease into storm drains; and
• Aggressive behavior and resistance to enforcement by vendors and customers.
Despite attempts by Code Enforcement to issue administrative citations, many unpermitted sidewalk vendors have refused or failed to comply with the Sidewalk Vending Program. Since sidewalk vending has been decriminalized by State law in SB 946, these individuals cannot be arrested for failing to provide legal identification upon request of code enforcement officers or police officers for the issuance of citations or notices. As a result, there has been little to no compliance with the City’s sidewalk vending regulations.
Based on all the above, City staff has coordinated with the City Attorney’s office to identify amendments to the sidewalk vending regulations to address the imminent health and safety hazards posed by unpermitted sidewalk vendors. The proposed Ordinance would provide the legal authority for any City official, including a City code enforcement officer, Public Works inspector, police officer, firefighter, fire prevention specialist or examiner to impound a sidewalk vendor’s vending cart, food, cooking equipment, utensils, goods or merchandise (collectively referred to as “items”) used in violation of Chapter 5.06, pursuant to the provisions of California Civil Code Section 2080.10 and California Health and Safety Code Section 114393, and/or any other applicable City, county, or state law for the following reasons:
1. Food displayed, offered, or made available for sale by a sidewalk vendor who does not possess a valid and displayed health permit;
2. Items that reasonably appear to be unattended or abandoned in public or private property for more than thirty (30) minutes without moving and a responsible person is not located within fifty (50) feet of the items;
3. Items from a sidewalk vendor who does not have a valid sidewalk vending permit;
4. Items from a sidewalk vendor operating in violation of the Sidewalk Vending Program who fails or refuses to provide identification;
5. A sidewalk vendor who refuses or fails to remove their items from public or private property within thirty (30) minutes after being instructed to do so by a City official;
6. Items blocking or obstructing the free movement of pedestrians on sidewalks in violation of the Americans with Disabilities Act and other disability access standards;
7. Items prohibited or restricted by federal, state, county, or City laws, ordinances, or regulations, such as illegal or counterfeit merchandise, alcohol, tobacco, cannabis, smoke or vaping products, adult-oriented material, live animals, weapons, and/or pharmaceuticals;
8. Items creating an imminent and substantial environmental hazard to the health, safety, and general welfare of the public or property at the location of the vending cart; and
9. Items impounded as evidence of a crime or booked as property after an arrest of any sidewalk vendor involving any City, County, State, or Federal law or regulation excluding Chapter 5.06.
In proposing this ordinance, staff seeks to balance several factors, including the private interests of the vendor in their equipment, and the City’s interest in protecting the health, safety, and welfare of its residents.
Among the procedural safeguards included in the proposed Ordinance is the articulation, in clear detail, of the scenarios in which vending equipment in the public right of way would be subject to impoundment. This provides unambiguous standards for sidewalk vendors to comply with. At the time of impoundment, a sidewalk vendor will be provided with a receipt, instructions on how to retrieve their items, and the option to promptly appeal the impoundment action upon payment of an appeal fee. The impound fees and appeal fees may even be waived upon successful appeal.
The proposed ordinance also includes procedures to guard against the possibility of erroneous impoundment. At the outset, code enforcement officers will issue a verbal warning to sidewalk vendors operating in violation of the Ordinance. Only after a sidewalk vendor does not comply after a reasonable time will an impoundment action commence. Any impoundment action will occur in plain view of the owner or operator of the sidewalk vending equipment. In the event of apparently unattended or abandoned property, reasonable steps would be taken to identify a responsible person prior to the impoundment action. This would greatly lessen the chance that the wrong person is being deprived of their personal property. Perishable items and items that cannot be safely stored will be disposed of in accordance with county and state law. Only unclaimed items will be considered abandoned and forfeited to the City. Finally, the Ordinance provides for a hearing process within a matter of days for the sidewalk vendor to contest the appropriateness of the impoundment and contest any fees. This hearing timeline provides a reasonably prompt opportunity to retrieve impounded equipment, thus reducing the risks associated with erroneous deprivation.
As noted above, the Ordinance seeks to balance private interests with the City’s interests in protecting the public health, safety, and welfare. The City has a legitimate interest in promoting public health and safety and removing hazards and obstructions from the public right-of-way. As noted above in this staff report, unpermitted sidewalk vending, particularly vending hot food items, poses particularly significant risks to the public. This ordinance seeks to protect the public from these significant risks.
Finally, the impoundment of sidewalk vending items does not constitute an infraction, misdemeanor, or any other form of citation or penalty. The proposed Ordinance is merely designed to provide additional tools to code compliance officers and other City officials to address the well-documented environmental, health, and safety concerns posed primarily by unpermitted sidewalk vendors. Impoundment actions are to be taken when necessary to protect the health, safety, and welfare of the public.
Public Camping:
On June 28, 2024, the Supreme Court overruled the decisions of Martin and Grants Pass, and opened the door for cities to again enforce laws regulating public camping. In order to comply with the holding of Martin, the City directly incorporated the decision into its laws regulating public camping. Now, the references to Martin are obsolete, requiring the City to amend its Code to reflect the current legal landscape. The proposed Ordinance merely removes any references to Martin and makes no addition to the City’s regulations of public camping.
ENVIRONMENTAL IMPACT:
In accordance with the requirements of CEQA, the project is exempt pursuant to State CEQA Guidelines section 15061(b)(3) of the California Environmental Quality Act.
Reviewed for Fiscal Impact:
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Sharon del Rosario
Attachment:
A. Ordinance