Excerpt from 09/14/10 City Commission Meeting minutes
Receive staff report regarding mobile food vendors.
Jonathan Douglass, Assistant to the City Manager/City Clerk, presented the staff report, which read:
Background.
In recent months the City Clerk’s Office and the Planning Division have received numerous inquiries regarding the ability to sell food and beverages from vans, trucks or trailers downtown and in other areas. Current city code does not allow for the proposed activity[i] (referred to as “mobile food vending” here) except that it provides for a license for ice cream vending (Section 9-301).
On April 13, 2010 the Commission received a written request to establish a license for such activities, and referred the request to staff for a report. If the Commission desires that a license or other regulations for the proposed activity be created, the following issues should be considered.
Potential Locations
Inquiries relating to the proposed activity have focused on potential to operate in five main areas: private parking lots, public streets generally, metered parking stalls downtown, public parking lots downtown, and in public parks during events.
Private parking lots. Inquiries have been received from individuals wanting to sell on a continuing basis in hotel parking lots and in the parking lots of large employers such as in the East Hills Business Park. Current city codes may hinder these business plans due to time limits and restrictions on vehicle use.[ii]
Public streets generally. Staff has received inquiries from people wanting to sell food from vehicles in primarily residential neighborhoods where many students live. Another scenario is in areas with large amounts of construction activity where food could be sold at or near work sites. This activity could potentially be governed similar to ice cream vendors, where the vendor cannot be parked at any one place for more than five minutes.
Metered parking stalls and public parking lots downtown. Most of the inquiries staff has received have focused on selling food from a vehicle in the downtown area, usually targeting the late night bar crowd as a customer base. I believe the people interested in this type of business activity would like to be able to park in a metered parking stall on Massachusetts Street or on one of the side streets close to Massachusetts. Of secondary interest is parking in the non-metered public parking lots downtown.[iii]
Public parks during events. Vendors selling food or merchandise from vehicles do occasionally operate in city parks during events, for example during the 4th of July food festival in Watson Park. This type of activity in parks is not allowed other than during approved events. If a licensing scheme or other regulations are created for the selling of food from vehicles, they should either apply to, or specifically exempt, vendors selling in the parks during approved events.[iv]
Hours of Operation
People wanting to engage in the proposed business activity downtown likely would be interested in selling all day, and into the early morning hours. Recent changes to the Street Vendor License ordinance allow licensed vendors on the sidewalks downtown to operate until 2:30 a.m. In some non-downtown areas, such as student-heavy neighborhoods, they would also likely be interested in selling into the early morning hours. Late night sales outside of downtown would probably be more problematic due to the nature of the neighborhoods.[v]
Regulations in other communities
Other Kansas communities take various approaches to regulating this type of activity, ranging from an absence of specific regulations, to codes governing the conduct of vendors (but no license requirements), to licensing schemes.[vi]
Recommendation
Given current priorities and limited resources, staff does not recommend creating additional regulations to allow mobile food vendors at this time. Current city code does not allow for the proposed activity, and Codes Enforcement and/or Police staff can respond to complaints about unauthorized activity as necessary. Staff believes this activity has the potential to generate significant complaints, particularly in the downtown area and in residential areas where it would be likely to take place. Given other priorities and more urgent issues, enforcement of regulations regarding mobile food vendors may fall short of community expectations; therefore staff does not recommend changing the code to allow this activity.
Mayor Amyx said currently to use a private parking lot a site plan was needed to allow that use and the only mobile food license was the ice cream vendor.
Douglass said yes this issue regarding mobile food licensing met the definition of a peddler in the code, or a transient merchant and the code specifically stated a stationary location was not allowed on the street to sell. The City could conceivably issue right-of-way permits for that use, which would be very difficult to administer because right-of-way permits were generally temporary for construction activity or a sidewalk sale and it would be difficult to use that permit to regulate food vendors who operated on continual basis. He said to be on a private property, a mobile food vendor would probably need a special event permit and there were certain stipulation in the special event permit that would make this type of activity difficult.
Mayor Amyx called for public comment.
Don Frecks, owner of a mobile food vending business, said that his experience had been that the relationship between the mobile vendors and the storefronts had been mutually beneficial; that license standards in other cities ensured quality vendors; and, it would be nice to conduct his business locally.
Oscar Marino said that he had filed a petition with the City to allow his concession trailer and he would give assurances that his business would be operated in a clean manner. He said his business partner ran a few restaurants downtown and was in favor of the mobile food vending also.
Michael Tanner said he had concerns about other street vendors bringing out prerecorded music and that street musicians had concerns about the city giving out permits for activity at certain corners, and that that activity would drive away street musicians.
Andrew Hoyt, Wing Wagon, raised other potential locations for mobile vendors such as parking lots at Orscheln’s and Checker’s.
Mayor Amyx said all of the location that Hoyt mentioned, needed to be site planned.
Scott McCullough, Planning and Development Services Director, said he was not familiar with the Checker’s issue, but Orscheln’s was a Farmers Market which was not a sale out of a truck. He said Douglass tried to highlight some of the issues with the code for this specific type of mobile vending which would not be allowed as the code was written today. Some of the issues were a time period of the special event permit of four 14 day periods, unless the City Commission could approve an additional time period. He said by definition, this type of vending was not allowed under current code if it was a sale out of a trailer or truck directly sold out of the vehicle itself.
Mayor Amyx asked if the City Commission was ready to direct staff to prepare the appropriate ordinance to allow mobile food vending, but he was not ready to allow mobile food vending and it was not a high priority at this time.
Commissioner Dever said the idea of allowing people to vend food from trailers was a good one. He said he was not sure how difficult the process was to site plan or set up an ancillary use in a vacant lot or some highly visible location on a private piece of property, but the City Commission could look at that issue to make it more simpler or look at ways to make this process more efficient, since there were more people wanting mobile food vending on public right-of-way.
He said the quality of the food was always pretty good at those places and had quite a few good meals across the country stopping and picking up food at one of those locations. He said there was a certain need and demand for mobile vending and he was willing to examine this issue now and determine if there was a majority support for looking at the right of way in the future. He said he since there were people wanting mobile food vending, the City might need to make an easier path in order to make that happen.
Mayor Amyx said he did not have a problem looking at mobile food vending on private property. He said there was probably already a City code that would not require a lot of change for those ancillary uses on property, but City staffing, at this time, was limited to manage that use. He said the City Commission could do what they could to help with that use on private property.
Vice Mayor Cromwell said it sounded like a good idea.
Commissioner Chestnut said he did not want to write a whole statue about public right of way mobile food service after three weeks of port a potties and other issues, but understood mobile food vending was important issues to certain people.
He said the site planning process needed to be worked on for private property which would be appropriate.
McCullough said it was not so much a process issue as that use was just not permitted today. He said staff needed to go back to the city code governing special events and make those types of special events a permitted use. He said the process was not as onerous as he might have made it sound. Mobile food vending was not a commercial activity that was permitted in the city code.
Commissioner Chestnut said he did not have an issue and asked if it would be a matter of a text amendment.
McCullough said no, it was a section of the city code that was not in the development codes so staff needed to bring that section to the City Commission.
Commissioner Chestnut asked about the differentiation in use between what was just considered and a mobile food vendor.
McCullough said what was just discussed was on the public right-of-way, then discussed mobile food vendors that would use the public right-of-way for their vending like an ice cream truck would, then there was vendor that wanted to go to a private parking lot and vend from the trailer/truck on private property. The only one permitted was the street vendor on certain intersection of Massachusetts Street.
Commissioner Chestnut said he would not mind starting to get something moving on the site planning.
David Corliss, City Manager, said staff’s challenge was their ability to police those types of activities, to set standards. The folks that were present and wanted to vend would do a first class job, but if establishing a regulatory scheme then anyone could apply and the City’s ability to police that type of use would be beyond City staff’s current resources. The time of day, the ability to respond to complaints would be a concern. He said maybe staff could continue to research this issue. He said staff had time to draft an ordinance because there were models established with existing ordinances, but the value about the stationery facilities down Massachusetts Street was the City knew where those street vendors were located and if there was a problem, staff would know where to go. If a mobile vendor were at different locations, it would be more difficult. He said other communities had mobile vending, but it would be another regulation where the City did not have the staffing to handle it.
Mayor Amyx said the discussion was about making a change to the private property section.
Commissioner Dever said that was a good way to set a precedent and decide how that type of vending would work and for some reason, down the road, someone wanted to consider the public right-of-way, there would be an opportunity. He said he was looking at making it legal for mobile vending because there might be that type of vending operating in town that was not permitted at this time.
Vice Mayor Cromwell said that if allowing mobile vending on private property someone could receive a permit for a particular location for a certain period of time and the traffic congestion issues could be avoided. If City staff knew where those mobile vendors were located, staff could do their inspections.
Commissioner Johnson said he was willing to move forward and look at the mobile vending on private property.
Mayor Amyx directed staff to draft a proposed ordinance change to add and regulate mobile vending on private property. (15)
[i] Selling food from a vehicle fits the definition of a “peddler” (Section 6-801) and peddlers are prohibited from using a stationary location on the street without a temporary use of right-of-way permit (6-813). Staff would be reluctant to issue a temporary use of right-of-way permit for a mobile food vendor (peddler) without City Commission direction that this use of the public right-of-way, particularly downtown, serves the public interest.
[ii] For the sale of food to take place in a private parking lot, a Special Event Permit from the Planning and Development Services Department and a Transient Merchant License from the City Clerk’s Office would be required. An SEP would restrict the activity at a single location to a maximum of four 14 day periods unless further activity is approved by the City Commission. However, the City Code prohibits sales from cars, trucks, vans and trailers associated with Special Events Permits [6-1504(A)(7)]. A Transient Merchant License may be issued for a period not to exceed five days, and not more than one license may be issued to any transient merchant during any six month period of time (6-804). Thus the proposed mobile food vending activity would be hampered by both the restrictions on sales from vehicles in the Special Event Permit code, and the short duration of the Transient Merchant License.
[iii] Street (sidewalk) vendors are allowed downtown but their locations are limited and they must receive permission from adjacent businesses. These types of restrictions would be difficult with mobile food vendors. If mobile food vendors are allowed in any part of the CD district, it may be advisable to require them to pay parking meters if metered parking is used, and to limit the amount of time parked at any one location.
[iv] Options for governing mobile food vending in parks could be to require mobile food vendors in parks to be licensed, expanding the definition to anyone selling from a temporary stand, cart or vehicle in order to apply the license to someone who sells, for an example, from a table under a tent. Exempting businesses with local retail locations that are selling at city approved events from licensing requirements would allow local vendors to participate in events (such as the Tour of Lawrence, Get Downtown, or the Lawrence Originals 4th of July event) without needing to obtain a license. Staff may also recommend exempting vendors at fairs, garage sales, farmers markets, school events, etc. (similar to the exemptions to the transient merchant license found in section 6-803). With these exemptions, the intent of the legislation could be met without creating an undue burden on park users.
[v] If mobile food vending is allowed in the following locations, the following hours of operation could be considered: (1) In the CD district between 7:00 a.m. and 2:30 a.m. the following day, which mirrors the hours of the street (sidewalk) vendors downtown; (2) in parks during the established hours of operation of the parks; (3) In all other zoning districts other than in parks and the CD district, from sunrise to sunset.
[vi] Lawrence’s peer communities take various approaches to regulating this type of activity. Some of their regulations are briefly described below.
· Lenexa: No specific license, but vendor would need a general city business license and a permit from the health department. Vendor could only sell from the right-of-way for a few minutes in a single location.
· Manhattan: Temporary Event Food Vendor license allows vendor to sell at events, up to six times per year. Vendors cannot sell from a vehicle in a public lot or on private property under other circumstances. License fees are $5.00 for application and $5.00 per day of the event(s).
· Overland Park: Sales of any product from a vehicle are subject to the following restrictions in the city code: vehicle may not remain standing more than 5 minutes in any location, unlawful to sell within 125 feet of any intersection, unlawful to sell between 8:30 p.m. and 10:00 a.m. Sales of food also require a Food Service Permit.
· Topeka: Mobile Food Service permit required. Activity only allowed in commercial, industrial, planned unit development or planned business center zoning designations. Activity only allowed from half hour before sunrise to half hour after sunset. Can sell on public streets or private property if site planned. $250.00 fee per six months.
· Wichita: Street vending (when merchandise or food is presented from a vehicle, cart, or stand) within the central business district is prohibited. Sales may be conducted in residential districts between hours of 8:00 a.m. – 8:00 p.m. No vehicle may be parked for more than 240 minutes in an 8 hour period in one location.