STATE OF NEW YORK ________________________________________________________________________
5081
2021-2022 Regular Sessions
IN ASSEMBLY
February 10, 2021 ___________
Introduced by M. of A. GONZALEZ-ROJAS -- read once and referred to the Committee on Cities
AN ACT to amend the general city law, in relation to the regulation of street vendors
The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:
1 Section 1. The general city law is amended by adding a new section 2 18-e to read as follows: 3 § 18-e. Street vendors. 1. For the purposes of this section, the 4 following definitions apply: 5 a. "Street vendor" means a person who sells food or merchandise from a 6 food truck, pushcart, stand, display, pedal-driven cart, wagon, show- 7 case, rack, other nonmotorized conveyance, or from one's person, upon a 8 public street, sidewalk or other pedestrian path. 9 b. "Local legislative body" means the legislative body of a city. 10 2. a. A local legislative body shall not regulate street vendors 11 except in accordance with subdivision three, four or five of this 12 section. 13 b. Nothing in this section shall be construed to affect the applica- 14 bility of any laws, rules, or regulations pertaining to food safety to a 15 street vendor who sells food. 16 c. Nothing in this section shall be construed to require a local 17 legislative body to adopt a new program to regulate street vendors if 18 the local legislative body has established an existing program that 19 substantially complies with the requirements of this section. 20 3. a. A local legislative body may adopt a program to regulate street 21 vendors in compliance with this section. 22 b. A local legislative body's street vending program shall comply with 23 all of the following standards: 24 (i) A local legislative body shall not require a street vendor to 25 operate within specific parts of the public right-of-way, except when
EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05066-01-1
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1 such restriction is directly related to objective health, safety, or 2 welfare concerns. 3 (ii) (A) A local legislative body shall not prohibit a street vendor 4 from selling food or merchandise in a park owned or operated by the 5 city, except the local legislative body may prohibit stationary street 6 vendors from vending in the park only if the operator of the park has 7 signed an agreement for concessions that exclusively permits the sale of 8 food or merchandise by the concessionaire. 9 (B) Notwithstanding clause (A) of this subparagraph, a local legisla- 10 tive body may adopt additional requirements regulating the time, place, 11 and manner of street vending in a park owned or operated by the city if 12 the requirements are any of the following: 13 (1) Directly related to objective health, safety, or welfare concerns; 14 (2) Necessary to ensure the public's use and enjoyment of natural 15 resources and recreational opportunities; or 16 (3) Necessary to prevent an undue concentration of commercial activity 17 that unreasonably interferes with the scenic and natural character of 18 the park. 19 (iii) A local legislative body shall not require a street vendor to 20 first obtain the consent or approval of any nongovernmental entity or 21 individual before he or she can sell food or merchandise. 22 (iv) (A) A local legislative body shall not restrict street vendors to 23 operate only in a designated neighborhood or area, except when that 24 restriction is directly related to objective health, safety, or welfare 25 concerns. 26 (B) Notwithstanding clause (A) of this subparagraph, a local legisla- 27 tive body may not prohibit stationary or roaming street vendors in areas 28 that are zoned exclusively residential. 29 (v) A local legislative body shall not restrict the overall number of 30 street vendors permitted to operate within the jurisdiction of the local 31 legislative body. 32 c. A local legislative body may, by law, ordinance or resolution, 33 adopt additional requirements regulating the time, place, and manner of 34 street vending if the requirements are directly related to objective 35 health, safety, or welfare concerns, including, but not limited to, any 36 of the following: 37 (i) Limitations on hours of operation that are not unduly restrictive. 38 In nonresidential areas, any limitations on the hours of operation for 39 street vending shall not be more restrictive than any limitations on 40 hours of operation imposed on other businesses or uses on the same 41 street; 42 (ii) Requirements to maintain sanitary conditions; 43 (iii) Requirements necessary to ensure compliance with the federal 44 Americans with Disabilities Act of 1990 (Public Law 101-336) and other 45 disability access standards; 46 (iv) Requiring the street vendor to obtain from the local legislative 47 body a permit for street vending or a valid business license, provided 48 that the local legislative body issuing the permit or business license 49 accepts a New York driver's license or identification number, an indi- 50 vidual taxpayer identification number, or a municipal identification 51 number in lieu of a social security number if the local legislative body 52 otherwise requires a social security number for the issuance of a permit 53 or business license, and that the number collected shall not be avail- 54 able to the public for inspection, is confidential, and shall not be 55 disclosed except as required to administer the permit or licensure 56 program or comply with a state law or state or federal court order;
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1 (v) Requiring the street vendor to possess a valid seller's permit or 2 license; 3 (vi) Requiring additional licenses from other state or local agencies 4 to the extent required by law; 5 (vii) Requiring compliance with other generally applicable laws; or 6 (viii) Requiring a street vendor to submit information on his or her 7 operations, including, but not limited to, any of the following: 8 (A) The name and current mailing address of the street vendor; 9 (B) A description of the merchandise offered for sale or exchange; 10 (C) A certification by the vendor that to his or her knowledge and 11 belief, the information contained on the form is true; 12 (D) The New York state tax number, if any, of the street vendor; or 13 (E) If the street vendor is an agent of an individual, company, part- 14 nership, or corporation, the name and business address of the principal. 15 d. Notwithstanding paragraph b of this subdivision, a local legisla- 16 tive body may restrict or prohibit street vendors within the immediate 17 vicinity of an area designated for a temporary special permit issued by 18 the local legislative body, provided that any notice, business inter- 19 ruption mitigation, or other rights provided to affected businesses or 20 property owners under the local legislative body's temporary special 21 permit are also provided to any street vendors specifically permitted to 22 operate in the area, if applicable. For the purposes of this paragraph, 23 a temporary special permit is a permit issued by the local legislative 24 body for the temporary use of, or encroachment on, the street, sidewalk, 25 or other public area, including, but not limited to an encroachment 26 permit, special event permit, or temporary event permit, for purposes 27 including, but not limited to, filming, parades, or outdoor concerts. A 28 prohibition of street vendors pursuant to this paragraph shall only be 29 effective for the limited duration of the temporary special permit. 30 e. For the purposes of this section, perceived community animus or 31 economic competition shall not constitute an objective health, safety, 32 or welfare concern. 33 4. All enforcement and inspection of this section shall be carried out 34 by the health officer of a city with a population of fifty thousand or 35 more, the commissioner of health or health officer of a county or part- 36 county health district, the state regional health director or area 37 director having jurisdiction, a grade I or grade II public health admin- 38 istrator qualified and appointed pursuant to 10 NYCRR Part 11, a public 39 health director or any county health director having all the powers and 40 duties prescribed in section three hundred fifty-two of the public 41 health law. The health commissioner or health officer of a city with a 42 population of fifty thousand or more, or the health commissioner or 43 health officer of a county or part-county health district, or such grade 44 I or grade II public health administrator or public health director or 45 county health director may designate the director of environmental 46 health of such district; and the state regional health director or area 47 director may designate the district director as additional persons 48 authorized to enforce and perform inspections pursuant to this section. 49 5. a. (i) A violation of a local legislative body's street vending 50 program that complies with subdivision three of this section is punisha- 51 ble only by the following: 52 (A) A fine not exceeding one hundred dollars for a first violation. 53 (B) A fine not exceeding two hundred dollars for a second violation 54 within one year of the first violation. 55 (C) A fine not exceeding three hundred dollars for each additional 56 violation within one year of the first violation.
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1 (ii) A local legislative body may rescind a permit issued to a street 2 vendor for the term of that permit upon serious repeated and persistent 3 violations of any of the requirements of subdivision three of this 4 section, and after notice and an opportunity for a hearing has been 5 provided by the permit-issuing official. 6 (iii) (A) If a local legislative body requires a sidewalk vendor to 7 obtain a street vending permit from the local legislative body, vending 8 without a street vending permit may be punishable by the following in 9 lieu of the fines set forth in subparagraph (i) of this paragraph: 10 (1) A fine not exceeding two hundred dollars for a first violation. 11 (2) A fine not exceeding three hundred dollars for a second violation 12 within one year of the first violation. 13 (3) A fine not exceeding four hundred dollars for each additional 14 violation within one year of the first violation. 15 (B) Upon proof of a valid permit issued by the local legislative body, 16 the fines set forth in this paragraph shall be reduced to the fines set 17 forth in subparagraph (i) of this paragraph, respectively. 18 b. The proceeds of a fine assessed pursuant to paragraph a of this 19 subdivision shall be deposited in the general fund of the local legisla- 20 tive body. 21 c. Failure to pay a fine pursuant to paragraph a of this subdivision 22 shall not be punishable as an infraction or misdemeanor. Additional 23 fines, fees, assessments, or any other financial conditions beyond those 24 authorized in paragraph a of this subdivision shall not be assessed. 25 d. (i) A violation of a local legislative body's street vending 26 program that complies with subdivision three of this section, or a 27 violation of any rules or regulations adopted prior to the effective 28 date of this section, that regulate or prohibit street vendors in the 29 jurisdiction of a local legislative body, shall not be punishable as an 30 infraction or misdemeanor, and the person alleged to have violated any 31 such provisions shall not be subject to arrest except when permitted 32 under law. 33 (ii) Notwithstanding any other law to the contrary, subparagraph (i) 34 of this paragraph shall apply to all pending criminal prosecutions under 35 any law, ordinance or resolution regulating or prohibiting street 36 vendors. Any such criminal prosecutions that have not reached final 37 judgment shall be dismissed. 38 e. A local legislative body that has not adopted rules or regulations 39 by law, ordinance or resolution that comply with subdivision two of this 40 section shall not cite, fine, or prosecute a street vendor for a 41 violation of any law, rule or regulation that is inconsistent with the 42 standards described in paragraph b of subdivision three of this section. 43 f. (i) When assessing a fine pursuant to paragraph a of this subdivi- 44 sion, the adjudicator shall take into consideration the person's ability 45 to pay the fine. The local legislative body shall provide the person 46 with notice of his or her right to request an ability-to-pay determi- 47 nation and shall make available instructions or other materials for 48 requesting an ability-to-pay determination. The person may request an 49 ability-to-pay determination at adjudication or while the judgment 50 remains unpaid, including when a case is delinquent or has been referred 51 to a comprehensive collection program. 52 (ii) The local legislative body may allow the person to complete 53 community service in lieu of paying the total fine, may waive or reduce 54 the fine, or may offer an alternative disposition. 55 g. (i) A person who is currently serving, or who completed, a 56 sentence, or who is subject to a fine, for a conviction of a misdemeanor
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1 or infraction for street vending, whether by trial or by open or negoti- 2 ated plea, who would not have been guilty of such offense under this 3 section had this section been in effect at the time of the offense, may 4 petition for dismissal of the sentence, fine, or conviction before the 5 trial court that entered the judgment of conviction in his or her case. 6 (ii) Upon receiving a petition under subparagraph (i) of this para- 7 graph, the court shall presume the petitioner satisfies the criteria in 8 subparagraph (i) of this paragraph unless the party opposing the peti- 9 tion proves by clear and convincing evidence that the petitioner does 10 not satisfy the criteria. If the petitioner satisfies the criteria in 11 subparagraph (i) of this paragraph, the court shall grant the petition 12 to dismiss the sentence or fine, if applicable, and dismiss and seal the 13 conviction, because the sentence, fine, and conviction are legally 14 invalid. 15 (iii) Unless requested by the petitioner, no hearing is necessary to 16 grant or deny a petition filed under subparagraph (i) of this paragraph. 17 (iv) If the court that originally sentenced or imposed a fine on the 18 petitioner is not available, the presiding judge shall designate another 19 judge to rule on the petition. 20 (v) Nothing in this paragraph is intended to diminish or abrogate any 21 rights or remedies otherwise available to the petitioner. 22 (vi) Nothing in this paragraph or related provisions is intended to 23 diminish or abrogate the finality of judgments in any case not falling 24 within the purview of this section. 25 § 2. This act shall take effect immediately.