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HomeMy WebLinkAbout38. 13-217 APRIL 9, 2013 APRIL 23, 2013 13-179 13-217 ORDINANCE FIRST READING SECOND READING (CARRIED 7-0 LOST LAID OVER WITHDRAWN ) AS AMENDED PURPOSE: APPROVE MOBILE VENDING ORDINANCE INITIATED BY: CITY ADMINISTRATION A GENERAL ORDINANCE OF THE CITY OF OSHKOSH CREATING CHAPTER 8, ARTICLE VI PERTAINING TO THE REGULATION OF MOBILE VENDING The Common Council of the City of Oshkosh does ordain as follows: SECTION 1. That Chapter 8,Article VI of the Oshkosh Municipal Code pertaining to Mobile Vending is hereby created to read as follows: ARTICLE VI. MOBILE VENDING SECTION 8-43. Regulation of Mobile Vendors I. Definitions: a. Licensee means an applicant who has obtained a license to conduct a mobile vending operation pursuant to this chapter. b. Mobile Vending Operation means vending, selling, serving, displaying, offering for sale or giving away goods, wares, merchandise, or food from a mobile vending unit. c. Mobile Vending Unit means any motorized or non-motorized vehicle, trailer, kiosk, pushcart, stand, display, blanket, ground covering or other device designed to be portable and not permanently attached to the ground from which any food, goods, wares, or merchandise are peddled, vended, sold, served, displayed, offered for sale or given away. This includes any display consisting of food, goods, wares or merchandise being peddled, sold, served, displayed, or offered for sale. This does not include a mobile wholesale delivery unit that visits multiple private or public property sites on a daily basis. d. Mobile Vendor means a person who peddles, vends, sells, serves, displays, offers to sell or give away food, goods, wares, or merchandise from a mobile vending unit. This term does not include a mobile wholesale delivery unit that visits multiple private or public property sites on a daily basis. e. Public Property as used in this ordinance means all property owned by a governmental entity, but does not include public rights of way. II. City License Required to Operate a. No Mobile Vending Unit shall operate within the City of Oshkosh without a Mobile Vending License issued by the City Department of Community Development. b. The following Mobile Vending Units are exempt from the requirement to obtain a Mobile Vending License: i. Mobile Vending Units that are approved participants of a Special Event; ii. Mobile Vending Units operating on private property and are not otherwise required by the Municipal Code to obtain a Temporary Use Permit. c. The City's Mobile Vending License is in addition to all other local, State, or Federal approvals, permits, or licenses necessary to engage in this activity. III. Mobile Vending Operations May be Located: a. On hardscape surfaces on private or public property, except as otherwise specifically limited or prohibited, with approval of the property owner. b. On hardscape surfaces in public right of way terrace areas, provided a minimum unobstructed sidewalk space of five (5) feet from the right of way line is maintained, and two (2) unobstructed feet from the established face of the curb or street is maintained. c. In legal on-street public parking spaces, provided the spaces are occupied with vehicles licensed to operate on streets, roads, and highways. Trailers, carts, wagons, and similar objects that are otherwise licensed for travel on streets, roads, and highways may occupy an on-street parking space provided they remain attached to the licensed motorized vehicle pulling it. All parking rules and regulations must be followed. d. The right of way terrace areas and on-street parking options are available provided these locations are not subject to a Special Event approved by the City. IV. Mobile Vending Operations are prohibited from the following locations: a. Any City park contrary to the rules set forth in Section 19.4(M) of the Municipal Code except through a vending contract with the City or as part of an approved Special Event. This includes driveways, parking areas, sidewalks, and public rights of way within City parks. b. Any City parking lot except as part of an approved Special Event. c. Any location which is otherwise included within an area approved for a Special Event within the City, except for those vendors who are allowed to operate by the organizer of the approved Special Event. d. Within twenty five (25) thirty-seven & half(37.5) feet of a customer entrance for a full service restaurant, or an approved sidewalk café, or another Mobile Vendor already occupying a particular location. The distance from a customer entrance shall be from a line perpendicular from the door frame and extending into the street. e. On the City's Riverwalk, or at a location which utilizes the Riverwalk in any way for the Mobile Vending Operation. f. No part of the Mobile Vending Operation can obstruct access to any fire hydrant nor obstruct the view of any fire hydrant from the street. g. No Mobile Vending Operation is permitted within five (5) feet of the sides of bus stops or bus shelters, nor permitted in a manner that interferes with the use of bus stops or interferes with the ingress and egress from any bus shelter. h. No Mobile Vending Operation can be located within five (5) feet of a curb- cut, a marked cross-walk, or any other obstruction including, but not limited to, a parking meter post, sidewalk bench, bike rack, kiosk, etc. i. No Mobile Vending Operation can be located to obstruct any truck, freight, or passenger loading zone, nor adjacent to any disabled parking space. j. Any location that will obstruct sight distance triangles at intersections. k. In Residential Districts, except for the following two situations: i. Continuously mobile, motorized, street - licensed vehicles stopping only for customers or for no longer than five (5) minutes in anticipation of future customers; and, ii. Mobile Vendor Operations adjacent to eligible City parks utilizing legal parking spaces or appropriate hardscape terraces upon the approval of the City Manager, or designee. Eligible City parks are defined as all City parks except Lakeshore Municipal Golf Course, Menomonee Park, Spanbauer Fields, Red Arrow Park, Pollock Community Water Park, Riverside Park, and Leach Amphitheater. V. Mobile Vending License: a. All applicants shall submit a completed application to the Department of Community Development and pay a nonrefundable application/license fee of$50.00 $100.00 dollars. There will be no additional charge in the event a Mobile Vending License is issued. b. Licenses are issued on a calendar year basis. There will be no pro rata or other reductions for applications during the calendar year. c. Applications will require information deemed necessary by the City Manager and shall include the following minimum information: i. Name and all contact information of the applicant. If the applicant is a legal organization, then the application shall identify the person who is authorized to act in all respects for the corporation. ii. The name and contact information for the person who will be managing, operating, and making decisions for the Mobile Vending Unit on a day to day basis. iii. Identification and description of the Mobile Vending Operation and Mobile Vending Unit. iv. A site plan showing the space the Mobile Vending Unit will occupy. v. The proposed location(s) of the Mobile Vending Unit. vi. Copies of other necessary permits or licenses from other governmental agencies including, without limitation, a health license and a Wisconsin Seller's permit. vii. Proof of liability and property insurance. A Mobile Vending License will not be issued until proof is provided showing that the City of Oshkosh is added as an additional insured to the Mobile Vendor's policy. d. All applicants shall meet with the Department of Community Development and other City officials to discuss compliance with applicable rules, regulations, and codes, to evaluate the applicant's proposed vending site(s), and to answer questions about rules for other potential vending sites within the City. The Department of Community Development shall arrange a meeting for the applicant with all City Departments deemed necessary to review the application. e. The City Department of Community Development will issue Mobile Vending Licenses for those who are eligible for License, and shall deny the application of those who are not eligible. Licenses shall include information deemed necessary by the City Manager, and shall contain the following minimum information: i. Name, address, telephone number, and contact person for the Vendor. ii. Type of vending allowed, such as food or merchandise. iii. If authorized to vend on private or public property, the license must include the address(es) on which they are allowed to locate their vending operations. f. Licenses shall be issued to allow Mobile Vending on private or public property, or on hardscape surfaces in the right of way, or in on-street public parking spaces, or a combination of these available locations. Except for private or public property locations, there shall be no sites assigned to any particular Mobile Vending Operation. g. Except for private or public property locations, Mobile Vending Sites shall be available on a daily basis to the first vendor to arrive. h. Mobile Vending Licenses shall be prominently displayed on the Mobile Vending Unit so that consumers and/or City employee or representative may easily view the content of the License. i. Licenses are not transferrable. Licenses may be amended to include operation on private or public properties or operation on additional private or public properties, by filing an amended application with the Department of Community Development. There shall be no charge for amended applications. VI. License denial, revocation, and appeals. a. Applications for licenses may be denied by the Department of Community Development if it appears that the approval of the application will for any reason be detrimental to the health, safety, and welfare of the public, and including the following reasons: i. Fraud, misrepresentation, or false statement contained in the application for the license. ii. Any violation of the provisions of this Chapter within the current or previous calendar year. iii. All other necessary approvals including, without limitation, health licenses or seller's permits, have not been obtained. iv. The applicant, principal of applicant, or a manager of applicant's mobile vending unit has been convicted within the previous five years of any felony, or misdemeanor that is substantially related to a Mobile Vending Operation. v. The applicant, principal of applicant, or a manager of applicant's mobile vending unit has admitted to or has been adjudged to have violated any civil consumer law within the previous five years. vi. The applicant, principal of applicant, or manager has had a vendor license issued by this City revoked within the current or prior calendar year. vii. The applicant is not 18 years of age. b. Any license issued pursuant to this Chapter may be revoked by the City Department of Community Development for one or more of the following reasons: i. The licensee, or manager of the licensee, has violated a provision of this article, or any other rule, regulation, or code that applies to a Mobile Vending Operation. ii. The licensee, or licensee's manager or employee of a Mobile Vending Unit, has been convicted of a felony, or misdemeanor substantially related to a Mobile Vending Operation. c. Application denials and license revocations may be appealed to the City Manager. The City Manager's decision shall be the final decision of the City. VII. Restrictions on Mobile Vending a. Every licensee operating a Mobile Vending Unit on private or public property shall have and maintain the written authority or permission to use the private or public property, and shall provide written evidence to the City Department of Community Development of that authorization or permission with the Application. b. Connection of a mobile vending unit or mobile food vending unit to a public source of electricity, water, or sewer at a mobile vending operation site is prohibited. c. No Mobile Vending Operation may use any public property such as light poles or other utility poles, flower planters, trees, or other amenities as a point of attachment for anything, including ropes, posters, signs, or electrical cords. d. Mobile Vending Units may be located and operational on public property and public right-of-way beginning at 8:00 a.m. and ending thirty (30) minutes after the same time as the closing time for Class "B" alcoholic beverage license or permit, with closing time as defined by Wisconsin Statutes or Oshkosh Municipal Code, whichever is later, except that those mobile vendors operating within legal on-street parking spaces must comply with all City parking ordinances. The ending time shall be the time the Mobile Vending Unit has been closed, cleaned, and completely removed from its vending location on public property. Mobile vending on private property shall not have any limitations of their time of operation. e. Mobile Vending Units otherwise located on public property or public right- of-way shall be removed from their location and returned to their mobile base during the time they are not allowed to operate as defined in paragraph Vll.d., above, and during all other times the Mobile Vending Unit is not actively operational. A mobile vending unit is actively operational when an attendant is present and the food or merchandise to be sold is available for purchase. The mobile vending unit may be inactive for only one consecutive hour, and a cumulative total of two hours between the hours it is allowed to be located on public property or public right-of-way. f. The site that a Mobile Vending Unit is occupying shall at all times be kept clean and free from litter, garbage, rubble, and debris. g. Mobile Vending Operations will comply with all applicable noise ordinances. h. Seating for consumer consumption or use of products sold is not allowed at the site occupied by the Mobile Vending Unit. One chair, stool, or seat for use by the operator will be allowed. i. Mobile Vending Units shall occupy a site only large enough to carry out the essential functions of the Mobile Vending Operation and shall not use a space larger than 6 feet by 10 feet, except for those using on-street public parking spaces. VIII. Penalties a. In addition to other potential fines, penalties, and/or charges as described in the Oshkosh Municipal Code, the violation of the terms of this Chapter by any person, organization, or entity shall be punishable by a forfeiture of $75.00. Each day of violation shall be considered a separate offense. In addition, the City may enforce this Chapter by way of immediately revoking the License, seeking injunctive relief, and all other remedies available in law and equity. b. The penalties set forth shall also apply to all persons, organizations, and entities that take actions or conduct themselves in a manner which requires a Mobile Vending License but the person, organization, or entity fails or refuses to do so. If any person, organization, or entity violates any provision of this Chapter, the City shall have the authority to institute appropriate legal action or proceedings to ensure compliance and to prohibit such person, organization, or entity from violating these conditions. SECTION 2 This ordinance shall be in full force and effect from and after its passage, publication and on and after May 24, 2013. SECTION 3. Publication Notice. Please take notice that the City of Oshkosh enacted ordinance #13-217 APPROVE MOBILE VENDING ORDINANCE, on April 23, 2013. The ordinance establishes a license for mobile vending of food and merchandise within the City. The ordinance also regulates the areas in which mobile vending is allowed, prohibits connection to any public utilities or amenities, restricts the hours of mobile vending upon public property and right-of-way areas, and requires vendors to obtain all applicable licenses and permits and to provide proof of insurance. The full text of the ordinance may be obtained at the Office of the City Clerk, 215 Church Avenue and through the City's website at www.ci.oshkosh.wi.us. Clerk's phone: 920/236-5011. **Bold& Italics indicates amendments CITY HALL 215 Church Avenue P.O.Box 1130 Oshkosh,Wisconsin 5 903-1130 City of Oshkosh OJHKO.IH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: April 4, 2013 RE: Mobile Vending Ordinance BACKGROUND The Common Council is being asked to consider a Mobile Vending Ordinance. Currently the City does not have an ordinance regulating mobile vending. During the past couple of years, staff has been receiving more questions regarding mobile vending and has noticed mobile vending units beginning to appear at different locations throughout the community. Staff also began to get questions and complaints from existing businesses questioning particularly the locations of vendor operations and the hours of operation. During 2012, City staff worked to gather information about the existing mobile vending operations within the City and looked at surrounding communities' practices and regulations as well as at regulations from communities nationwide. Using all of this information, staff created a draft mobile vending ordinance. The draft ordinance was sent to all affected departments and divisions for review and there was also some discussion with the Downtown BID Board, since much of the local vending activity currently takes place within the BID District. Staff also invited all bar/restaurant/sidewalk café owners in the downtown area and known vendors within the community to a March 11, 2013 meeting to discuss the draft ordinance. ANALYSIS Attached to this memorandum is a two-page summary of the main provisions contained within the proposed ordinance for your review. Staff received no comments opposing the creation of a mobile vending ordinance. There were several specific issues however, that were raised during the review and drafting of the ordinance which will be addressed separately below. I. Closing Time. Establishment of a closing time for mobile vending operations probably generated the greatest amount of discussion amongst staff, the existing businesses and the current vendors operating within the City. The downtown business owners who attended the March meeting expressed concerns about crowds or persons hanging around in the downtown area after businesses were closed for the night. They also expressed concern about noise and safety for those persons who reside in the downtown area. The business owners recognized that the vending operators may want to operate past bar closing, but suggested 15 minutes was reasonable. The mobile vendors indicated that they do operate past bar closing and typically get a bit of a rush right as bars are closing. However, the mobile vendors that were present at the March meeting acknowledged that they are usually packing up about 15-20 minutes after bar closing time. One vendor, who also operates in Appleton, stated that he does stay open later on occasion. Appleton's ordinance allows operation until 4 a.m. The proposed ordinance would regulate the closing time for mobile vending occurring on public property and rights-of-way and require vendors operating in those places to close one-half hour after bar closing time. This would require vendors on public property or in the public right-of-way to close at 2:30 a.m. Sunday through Thursday evening and at 3:00 a.m. on Friday and Saturday evenings. It should be noted however, that the ordinance does require compliance with parking restrictions, so as a practical matter mobile vending occurring in on-street parking spaces would be required to be closed at 2 a.m. There is no specific closing time proposed for vending occurring on private property. The proposal to require closing mobile vending one-half hour after bar closing on public property was a compromise, taking into consideration the concerns raised by business owners and the practical experience of those persons currently operating as mobile vendors within the city. Staff believed that there was a greater need and responsibility to regulate conduct occurring on city-owned property. Limiting operators to 15 minutes to clean up, prepare the unit for transportation, and leave the location was possibly too restrictive and impractical. Based upon the input of the mobile vendors, it appears that one-half hour is a reasonable period of time for operators to serve patrons who may be leaving licensed establishments and remove their vending operations from the right-of- way. The draft ordinance does not contain a provision for a specific closing time for mobile vending operations conducted upon private property. Aside from licensed establishments, which are regulated by state statute, the city has not traditionally regulated the closing times for business operations located on private property. Operations on private property remain subject to nuisance, noise, littering, and other regulations. II. Distance. The draft ordinance contains a provision prohibiting mobile vendors from locating within 25 feet of a customer entrance to a full service restaurant, a sidewalk café, or another mobile vending operation. The distance provision is a means to prevent conflict between operations, to limit clutter, and to maintain sufficient public areas for parking, movement, and interaction. One of the primary areas that was identified where this may be a concern is Main Street. There was a suggestion that 25 feet was not a sufficient distance and that 50 feet may be more appropriate. Attached to this memorandum are two maps showing those areas along Main Street that would be prohibited by the 25 foot rule and a 50 foot rule based upon current occupancies and sidewalk café permits. Again, because the rule would also apply to other vendors, in practice the open areas would be further restricted by any mobile vendors locating along Main Street. Staff is recommending 25 feet as a reasonable distance at this time. III. Parking —Trailers. Mobile vendors questioned why carts must remain hooked to trailers in legal parking spaces in the right-of-way (city parking lots may not be used for mobile vending, except as it may be approved as part of a special event). They explained that, for some mobile vending units, the trailer bars are made to be unhooked and can present a tripping hazard if persons cross between the vending cart and the vehicle. In some cases, carts may also be designed to serve from the hitch area and it is more convenient for the vendor to be able to unhook the trailer from the vehicle. As written, the mobile vending ordinance requires vendors to comply with all parking rules and regulations. This would include time limits on parking, locations for allowed parking and, in this case, ordinances that prohibit parking of unhitched trailers on the streets. While staff understood the convenience of unhooking the trailers, staff believed it would be difficult to make an exception for one group and not others who may have equally compelling arguments as to convenience. IV. Special Events. There was discussion about the location of mobile vendors in relation to special events. In particular, there was discussion about vendors locating adjacent to the Leach Amphitheater and to Opera House Square during the Live at Lunch concert series. As written, the ordinance would prohibit operation of a mobile vendor within the bounds of the Special Event without permission of the Special Event organizer. The proposed ordinance does not contain any other specific prohibitions for special events, although mobile vendors would still be required to comply with the distance and other requirements otherwise specified in the ordinance. For example, during Live at Lunch a mobile vendor could park in the legal parking spaces along Main Street adjacent to Opera House Square or along Algoma Boulevard, if parking spaces were available. They would not be allowed within the park itself or along Market Street, as those areas are within the boundaries of the special event. Mobile vendors would also need to maintain a 25 foot distance from each other and would need to comply with parking time limits and any other regulations. Downtown business owners noted that the general rules are the same rules applicable to all establishments and questioned whether it would be fair to have greater limitations on vending in relation to special events than in relation to established businesses. At this time, staff is not recommending an additional buffer be established for special events. V. Fees. There was a suggestion that the proposed $50 fee for the mobile vending license was too low and should be raised to at least $250 to be comparable with other cities. Although it is likely that review of the mobile vending application by the various departments and divisions and meeting with the applicant will actually cost more than the proposed $50 fee, the $50 fee was proposed to be consistent with the current sidewalk café fee. There has been increased interest in mobile vending within the community in the past several years and staff believes that the proposed ordinance provides a good base for the regulation of this activity within the city based upon current activity. The ordinance will allow staff to better monitor mobile vending activity and can be modified in the future if issues develop. FISCAL IMPACT The proposed fee is intended to balance the costs of the application review and license issuance. There is no significant fiscal impact expected from passage of this ordinance. RECOMMENDATION Staff recommends approval of the ordinance. Respectfully Submitted, Approved: ejleytivu fir, n_ ,...„etee....k. Lynn A. Lorenson Mark A. Rohloff City Attorney City Manager MOBILE VENDING ORDINANCE — SUMMARY - Allows mobile vending of food and merchandise within the City of Oshkosh upon issuance of a permit. - License allows them to vend in City; specific locations are on a daily first come, first reserved basis. - Vending may occur generally in commercially and industrially zoned areas, and subject to limitations within residential areas. - Vending may occur along a street in the hardscape terrace area as long as they are 5 feet from the buildings and 2 feet from the curb. - Vending may occur on hard surface around Monument Square so long as an unobstructed 5 foot walkway is maintained and the mobile vendor is at least 2 feet from the curb or legally parked within a parking space. - Street Licensed vending units may set up in on-street parking areas as long as parking restrictions are followed, (i.e. vehicle remains operational, time limits, 2 to 5 a.m. parking prohibition is observed, etc...) - Mobile vending must be no closer than 25 feet to the doorway to a full service restaurant, a sidewalk café or another sidewalk vendor. - Approved special events have priority over normal vending locations. - Vending is not allowed in City parking lots, unless as part of an approved special event. - Vendors may set up on private property. Vendors on private property may be required to obtain a temporary use permit. - Vending is not permitted in City Parks or on the City Riverwalk except through a vending contract with the City or as part of an approved Special Event. - Vending is not allowed adjacent to main parks (generally, those with vending). Mobile vending is allowed adjacent to other city parks upon approval of the City Manager. April 4, 2013 - In other residential areas (residential areas not adjacent to city parks), mobile vendors are not permitted to park and stay in one location. Mobile vendors must keep moving and make only short stops to sell products. - Vendors must maintain the appropriate distances from crosswalks, curb cuts, sidewalk benches, bike racks, bus shelters and stops, and other obstructions. - Vendors are prohibited from connecting to light poles, utility poles, or any public source of electricity, water or sewer or to any planter or tree or other public amenity - Mobile vending hours are not restricted on private property locations. - Mobile vending hours on public property and public right-of-way are from 8 am to % hour after bar closing time which would be 2:30 a.m. Sunday through Thursday and 3:00 a.m. Friday and Saturday evenings, which is longer hours than sidewalk café's. However, mobile vendors in on street parking spaces must obey the 2 to 5 parking rules, so must close or move to another location by 2 a.m. Mobile vending units must be closed, the area cleaned and the unit removed by the time specified. - Vendors would need proof of insurance and add City as additional insured. - Applications submitted to, and licenses granted by, Department of Community Development. - Applicants must pay an annual $50 fee - All applicants would go through the Site Plan Review Committee to give an opportunity to discuss their options for moving around the City. - Appeal license denial or revocation to City Manager. 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