Legal Alerts Sep 24, 2018

California Cooks Up Sidewalk Vendor Law

SB946 Limits Cities’ Abilities to Regulate

California Cooks Up Sidewalk Vendor Law

Legislation signed last week by Gov. Jerry Brown limits California cities’ abilities to regulate street vending. Notably, Senate Bill 946 prohibits all criminal penalties for sidewalk vending violations and allows anyone previously prosecuted for a vending violation the opportunity to have a conviction, fine or sentence dismissed.
 
The legislation defines “sidewalk vendor” as a person who sells food or merchandise on a public sidewalk or other pedestrian path.
 
The new law requires local authorities to establish a need for any proposed regulations, as the bill repeatedly provides that sidewalk vendor regulations must be directly related to “objective health, safety or welfare concerns.” Also, SB 946 explicitly states “…perceived community animus or economic competition does not constitute an objective health, safety, or welfare concern.”
 
The legislation includes the following elements:

  • Prohibits all current sidewalk vending regulations unless they are consistent with SB 946 and prohibits cities from imposing sidewalk vending regulations “within specific parts of the public right of way,” or within certain neighborhoods or areas.

  • Prohibits cities from limiting the total number of vendors unless doing so is directly related to “objective health, safety or welfare concerns.”

  • Authorizes cities to adopt time, place and manner restrictions for sidewalk vending, provided those restrictions are directly related to “objective health, safety or welfare concerns.” To the extent limitations on hours are needed, they cannot be unduly restrictive.

  • Continues to allow cities to require compliance with sanitary standards, ADA requirements and that food preparation be consistent with Health and Safety Code sections 113700 et seq.

  • Cities can still require that vendors obtain a permit for sidewalk vending or a business license and require them to possess a sellers permit from the California Department of Tax and Fee Administration.

  • Allows cities to prohibit from areas zoned exclusively residential “stationary sidewalk vendors” — vendors who remain at a fixed location, but cities cannot prohibit “roaming sidewalk vendors” — vendors who move from place-to-place and only stop to complete a transaction..

  • Allows cities to prohibit vending within the vicinity of a farmers’ market or swap meet or areas designated for use pursuant to a temporary special permit.

  • Allows cities to impose sidewalk vending regulations for public parks, provided they are necessary to ensure the use and enjoyment of the park and necessary to “prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the [a] park.”

Changes to Penalty Provisions
 
SB 946 also requires cities to cease criminal prosecution as an enforcement option for sidewalk vending violations. A city can issue administrative citations for violations of its sidewalk vending regulations and can impose higher administrative penalties for failure to obtain the appropriate permits. If a city seeks to impose administrative fines, SB 946 requires there be a process for determining the person’s ability to pay. Further, the person must be informed of his or her right to request an “ability-to-pay determination.” Finally, if the person is successful in establishing that he or she is unable to pay, he or she will only be required to pay 20 percent of the fine.
 
SB 946 takes effect Jan. 1. Cities that want to regulate sidewalk vending will need to take immediate action to adopt regulations that can become effective on that date.
 
For more information about this law and how it may impact your agency, please contact one of the authors of this Legal Alert listed at the right in the firm’s Municipal Law practice group or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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