September 21, 2018 -- Client Alert
Governor Jerry Brown recently signed Senate Bill 946, also known as the Safe Sidewalk Vending Act. Under the law, which goes into effect January 1, sidewalk vendors may not be prohibited, although local authorities will be able to establish regulations on sidewalk vendors to protect valid health, safety and welfare concerns. The statute defines “sidewalk vendors” as “persons who sells food or merchandise 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 pedestrian path.” A sidewalk vendor can be roaming or stationary. “Local authority” is expressly defined as both chartered and general law cities and counties.
The statute addresses sidewalk vending in four contexts: (1) generally, (2) in parks, (3) within the vicinity of farmers’ markets and swap meets, and (4) within temporary special permit areas. This summary will outline what a local authority may and may not regulate within each of these contexts.
Sidewalk Vendors Generally
Specifically, a local authority may not:
- Require a sidewalk vendor to operate within specific parts of the public right-of-way, except when directly related to “objective health, safety, or welfare concerns”.
- Require a sidewalk vendor to first obtain the consent or approval of any non-governmental entity or individual before he or she can sell food or merchandise.
- Restrict sidewalk vendors to operate only in a designated neighborhood or area, except when the restriction is directly related to objective health, safety, or welfare concerns; however, stationary sidewalk vendors (as opposed to roaming sidewalk vendors) may be prohibited in exclusively residential zones.
- Restrict the overall number of sidewalk vendors permitted to operate within the local authority’s jurisdiction, unless the restriction is directly related to objective health, safety, or welfare concerns.
On the other hand, a local authority may adopt 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:
- Limitations on hours of operation (so long as they are not unduly restrictive)
- Requirements to maintain sanitary conditions
- Requirements necessary to ensure compliance with the federal Americans with Disabilities Act and other disability access standards
- Requiring the sidewalk vendor to obtain a permit for sidewalk vending and a valid business license
- Requiring the sidewalk vendor to possess a valid California Department of Tax and Fee Administration seller’s permit
- Prohibiting stationary sidewalk vendors in areas zoned for only residential uses
- Requiring compliance with other generally applicable laws
- Requiring a sidewalk vendor to submit certain information on his or her operations
Sidewalk Vending and Parks
The statute separately addresses regulation of sidewalk vending in parks owned or operated by the local authority. Specifically, a local authority may not:
- Prohibit a sidewalk vendor from selling food or merchandise in a park owned or operated by the local authority; however, stationary sidewalk vendors (as opposed to roaming sidewalk vendors) may be prohibited from vending in the park if the operator of the park has signed an agreement for concessions that exclusively permits the sale of food or merchandise by the concessionaire.
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:
- Directly related to the objective health, safety, or welfare concerns
- Necessary to ensure the public’s use and enjoyment of natural resources and recreational opportunities, or
- Necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park.
Sidewalk Vending and Farmers’ Markets and Swap Meets
With respect to farmers’ markets and swap meets, the local authority may:
- 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.
The statute additionally provides definitions of “certified farmers’ market” in accordance with the Food and Agricultural Code and “swap meet” in accordance with the Business and Professions Code.
Sidewalk Vending and Temporary Special Permit Areas
The statute provides that, for the purposes of this section of the statute, 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. This includes, but is not limited to: (1) an encroachment permit, (2) a special event permit, or (3) a temporary event permit for purposes including, but not limited to, filming, parades, or outdoor concerts.”
A local authority may restrict or prohibit sidewalk vendors within the immediate vicinity of an area designated for a temporary special permit for the duration of the temporary special permit.
Violation of the Safe Sidewalk Vending Act
Criminal penalties for sidewalk vending are prohibited. Instead, a violation may only be punishable only by an administrative fine, pursuant to an ability-to-pay determination. The local authority must provide notice to the violator that he or she has the right to request an ability-to-pay determination and make instructions available for doing so, and accept payment of 20% of the fine in full satisfaction if the violator earns less than 125% of the federal poverty line or receives certain means-tested government benefits.
Failure to pay the administrative fine is not punishable as an infraction or misdemeanor and additional fines, fees, assessments, or any other financial conditions may not be imposed. However, 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.
Alternatively, the local authority may allow the person to complete community service in lieu of paying the total administrative fine, may waive the fine, or may offer an alternative disposition.
Additionally, pending vendor citations and previous convictions will be vacated.
Things to Consider
- 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.
- However, if a local authority does not adopt a program to regulate sidewalk vending that complies with the statute, the local authority may not cite, fine, or prosecute a sidewalk vendor for a violation of any rule or regulation that is inconsistent with the statute.
- The statute does not specifically define “objective health, safety, or welfare concerns” but states that “perceived community animus or economic competition does not constitute an objective health, safety, or welfare concern.”
- This statute does not affect the applicability of the California Retail Food Code to a sidewalk vendor who sells food, which lays out the requirements that food retailers must meet, including operational practices, equipment standards, and standards for facilities.
- The statute bill includes not only vendors of food, but also vendors of merchandise. The statute does not clearly define “merchandise.”
For further information, please contact Tiffany Israel or Nicole Lucas from Aleshire & Wynder, LLP at (949) 223-117
Disclaimer: Aleshire & Wynder, LLP legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Please seek legal advice before acting or relying upon any information in this communication.