Number
111646
Version
SUBSTITUTE 1
Reference
Sponsor
ALD. BOHL
Title
A substitute ordinance relating to the procedures for application for, and issuance of, new and renewal food peddler permits, and revision of food peddler regulations to clarify language and code provisions.
Sections
73-2-3 am
74-1 rc
74-3-2-c am
74-3-4 am
Analysis
This ordinance establishes procedures for the application for, and issuance of, food peddler permits that are similar to existing procedures for food dealer licenses. This ordinance also revises food peddler regulations to clarify language and code provisions The ordinance also clarifies that it is the city clerk, not the commissioner of health, who issues food peddler permits.
Body
The Mayor and Common Council of the City of Milwaukee do ordain as follows:
Part 1. Section 73-2-3 of the code is amended to read:
73-2. Manufacture, Sale or Distribution of Ice.
3. VEHICULAR IDENTIFYING DEVICES REQUIRED. No ice shall be delivered, transported, conveyed or carried in or on any vehicle for use in the city of Milwaukee
unless the owner shall have first obtained from the commissioner of health [[an identifying device]] >>a permit sticker<< as described in [[s. 74-1-4]] >>s. 74-1-6-c<<, which shall be securely fastened on the outside right side of the licensed vehicle.
Part 2. Section 74-1 of the code is repealed and recreated to read:
74-1. Food Peddlers. 1. FINDINGS. The common council finds that regulation of the health conditions of food sold by food peddlers is necessary for the prevention of disease and sickness within Milwaukee and such regulation is vital to the health, safety and welfare of residents of and visitors to the city.
2. DEFINITIONS. In this chapter:
a. "Carried container" means a container carried on foot which contains food for sale.
b. "Commissioner" means the commissioner of health.
c. "Food" means all articles used for food, drink or condiment including ice or water used by humans, whether simple, mixed, or compound and articles used or intended for use as ingredients in the composition or preparation thereof.
d. "Food peddler" means any person who sells food from a food peddler vehicle or from a carried container.
e. "Food peddler vehicle" means any pushed, pedaled, pulled or motorized vehicle from which food is prepared or sold.
f. "Motorized vehicle" means a vehicle which uses a mechanical engine to propel it.
g. "Person" means any individual, firm or corporation.
h. "Pushed, pedaled or pulled vehicle" means a vehicle which does not have a mechanical engine to propel it and is moved by human power.
i. "Veteran" means any ex-soldier of the United States in any war who has a 25% disability or more or has a cardiac disability recognized by the U. S. department of veterans affairs.
3. PERMIT REQUIRED. a. General. No person shall engage in the sale of any food from any vehicle on public streets without first receiving from the city clerk a food peddler permit. A permit issued under this section shall not permit any person to sell food from a temporary or permanent structure or a vehicle other than a vehicle selling food on public streets or contrary to any other ordinance of the city.
b. Exceptions. A person selling only bottled or canned non-alcohol drinks that don't require refrigeration and no other food items is not required to have a permit issued under this section but shall comply with all other requirements of this section.
4. APPLICATION. Application for a food peddler permit shall be made in writing to the city clerk on forms provided by the city clerk and shall contain the following information:
a. Name, home address and telephone number of the applicant. Post office box numbers shall not be acceptable for addresses required on applications.
b. Applicant's date of birth.
c. Motor vehicle driver's license number used.
d. If the applicant will be selling food provided by a food service establishment, the name and address of the establishment.
e. The category of permit being applied for specified in sub. 6, including whether the applicant is a veteran or is applying for a night operation permit.
f. A description of the location or locations where the applicant intends to sell food.
g. The hours of the day during which the applicant intends to sell food.
h. Whether the applicant is an individual, corporation or partnership, including:
h-1. If the applicant is a corporation, the registered agent's name, address and date of birth, and verification that the corporation has been registered with the secretary of state as provided in ch. 180, Wis. Stats.
h-2. If the applicant is a partnership, the names and addresses of the partners.
i. A unique serial number, vehicle identification number or a permanent unique number or alpha identifier distinguishing each food peddler vehicle or carried container to be permitted.
j. Such other reasonable and pertinent information the city clerk, commissioner of health or chief of police may from time to time require.
k. The signature of all applicants and their agents to confirm that all the information on the application is correct and acknowledge that any change in the information on the application shall be reported to the city clerk within 10 days of the change.
5. FEE. a. All new and renewal applications shall be accompanied by the applicable fees specified in ss. 60-29 and 60-31.
b. If payment for the permit fee is made by check or other draft and payment on the draft is stopped or the draft is drawn upon a non-existent or an account containing insufficient funds, the applicant shall, within 15 days after the receipt of notice from the city clerk of the insufficiency, pay by casher's check or other certified draft, money order or cash, the fees, late fees and processing charges as specified by the code. Non-payment of all applicable fees, late fees and processing the changes within 15 days after the applicant received notice of the insufficiency shall render the permit null and void until all fees, late fees and processing charges are paid in full.
c. A veteran upon presenting proof to the city clerk that he or she satisfies the conditions provided in sub. 2-i, shall be granted a food peddler permit for one pushed, pedaled, pulled, or motorized vehicle or container without payment of any fee. The veteran shall be the operator of the food peddler vehicle or carried container for which the fee has been waived.
6. PROCEDURE FOR ISSUING NEW OR RENEWAL PERMIT. a. ISSUANCE. All applications shall be referred to the commissioner of health who shall cause an investigation to be made. The city clerk shall issue a permit to each applicant for a new or renewal permit who meets all the requirements of this section, has paid to the city treasurer the applicable fees, provided approval has been made by the commissioner of health of a satisfactory investigation. Permits shall be issued for the following categories:
a-1. Pushed, pedaled or pulled vehicles.
a-2. Motorized vehicles.
a-3. Carried Containers.
b. Night Operation. The city clerk shall provide for issuance of a of a sub-category of each of the permit types identified in par. a to allow for a food peddler to sell food between the hours of 9 p.m. and 3 a.m., in addition to sales between 6 a.m. and 9 p.m., except that a food peddler with a nighttime sales permit may sell food until 3:30 a.m. on Saturday and Sunday and at any time on January 1. The applicant for a permit allowing nighttime sales shall pay a surcharge required under s. 60-31.
c. Peddler Permit Sticker. Together with each permit, the city clerk shall issue a peddler permit sticker with the words "City of Milwaukee Food Peddler - permit no....," stamped on it. Any food peddler, before engaging in the sale of any food products, shall have the peddler permit sticker affixed to the peddler's vehicle or container in a prominent place. Each peddler shall at all times have available for inspection the paper permit whose number matches the number on the peddler permit sticker.
7. RULES AND OPERATING REGULATIONS. a. Identifying Signage. Each food peddler vehicle or carried container used for business purposes subject to permitting as a food peddler under this section shall have identifying signs printed or affixed, in a prominent position, to 2 sides of the vehicle or container. Each identifying sign shall include the name of the business or person operating the vehicle or container, a valid telephone number for the business, and the unique serial number, vehicle identification number, permanent unique number or alpha identifier distinguishing the food peddler vehicle or carried container in lettering not less than 3 inches high.
b. Agents of Permit Holders. Whenever a business, organization or individual holds a food peddler's permit and individual peddlers make sales under the authority of that permit, each such individual peddler is an agent of that business, organization or individual for purposes of those sales. Any violation of this section by an agent shall be imputed to the business, organization or person that holds the food peddler's permit under which the agent's sales are made.
c. Sales on the Public Way Only. All sales shall be made on the public way directly from pushed, pedaled, pulled or motorized vehicles or carried containers.
d. Parked One Hour or Less. Any person engaged in the sale of any food from a vehicle shall not remain in any location adjacent to any one block area, which block contains only nonresidential occupancy or use, more than one hour on any one day, except as follows:
d-1. Whenever any street or portion thereof has been closed to traffic by common council resolution in connection with any civic event, the city clerk may, upon receipt of the required fee, issue a permit to any person holding a permit for the sale of food from a vehicle further permitting such person to park on such closed streets longer than the one-hour limit provided in this paragraph. The permit shall specify the dates for which it is issued, and the fee required in ch. 60 shall be charged for each date. No permit shall be issued without the approval of the chief of police, unless the common council by resolution shall so direct.
d-2. A motorized food peddler vehicle may be parked in one location on a nonresidential block in excess of the one-hour limit specified in this paragraph, provided the vehicle is parked in compliance with all posted time limits on parking and with all other applicable parking regulations.
d-3. The number of vehicles at any given event, in any given block, and the spacing of such vehicles, as well as the number of blocks within the closed traffic section allocated for such vehicles, shall be determined by the police department in cooperation with the local alderman and sponsoring group.
e. Exceptions. The common council may, by resolution, designate specific exceptions as to locations, dates or individual events, to the provisions of par. d.
f. Penalty. Any vehicle parking in a closed traffic section, or parking outside the barricaded street section longer than allowed under par. d by existing code provisions, without a permit shall be fined $100 and the vehicle shall be towed away at the owner's expense.
g. Keeping of Perishable Food. All perishable foods shall be kept in one of the following ways:
g-1. Frozen.
g-2. Refrigerated at 41° F or lower by means of mechanical refrigeration.
g-3. Heated and maintained at 135° F.
h. Scale Required. A food peddler shall provide a scale for items that are sold by weight and weighed at the time of sale. The scale shall be approved and licensed under ss. 60-91 and 82-14.
i. Noise Restricted. A food peddler shall comply with the noise nuisance regulations of s. 80-65-4 and all other noise regulations of this code.
j. Parking Restrictions. A food peddler shall comply with all parking regulations provided under ss. 105-56 and 115-45.
k. Sale of Soda Water. Soda water shall be sold in single-service bottles, cups or aluminum cans only.
8. PROHIBITED ACTIVITIES. a. Permits and Peddler Permit Stickers Not Transferable. Permits and peddler permit stickers shall be nontransferable except upon order of the commissioner of health. Any food peddler selling, giving away or exchanging any permit or permit sticker, or any food peddler obtaining a permit by misrepresentation, or improperly registering his or her name or address shall be subject to the forfeitures provided for in sub.11.
b. Sale of Unwholesome Food Prohibited. No food peddler shall sell any food or food product that is unwholesome, as defined in s. 97.42(1)(m), Wis. Stats., or tainted, or that is unclean, or that has been handled in an unclean manner, or has been exposed to unclean or contaminating things or conditions, or contrary to any rules or regulations adopted by the commissioner of health.
c. Sales from the Median or Safety Island Prohibited. No food peddler shall sell or offer for sale any food while the person is on a roadway median or safety island, except when the roadway has been closed to traffic under subd. 7-d-1 and the peddler is otherwise in compliance with this section.
d. Sale of Food Between the Hours of 9 p.m. and 6 a.m. Prohibited. The sale of food between the hours of 9 p.m. and 6 a.m., the following morning shall be prohibited. This prohibition shall not apply on January 1, Memorial Day, Juneteenth, the 3rd and 4th of July, Labor Day, on city streets adjacent to State Fair Park during the run of the Wisconsin State Fair or during any other specific dates specified by the common council by resolution. Nor shall it apply to a food peddler to whom the commissioner has issued a food peddler's permit allowing nighttime operation, pursuant to sub.6-b.
e. Blocking Pedestrian Access to Doorways Prohibited. Blocking or restricting an individual's access to a business or residential doorway shall be prohibited.
f. Blocking Sidewalk Prohibited. Occupying any sidewalk so as not to permit any pedestrian at any time to have a minimum 5-foot clearance shall be prohibited.
g. Lewd Comments Prohibited. Making any comment, request, suggestion or proposal which is obscene, lewd, lascivious, profane, filthy or indecent shall be prohibited.
h. Door-to-Door Sales Prohibited. Selling food door-to-door shall be prohibited except as provided under s. 68-4.
i. Horn Use Prohibited. A food peddler with a permit for a carried container or pushed, pedaled or pulled vehicle shall not use any type of horn.
9. AUTHORITY OF COMMISSIONER. The commissioner of health may make and adopt written rules and regulations as may be necessary for the proper enforcement of this section. The commissioner of health shall file a certified copy of all rules and regulations which he or she may adopt with the city clerk, and a certified copy of the rules and regulations shall also be on file in the office of the commissioner of health. The rules and regulations shall have the same force and effect as the provisions of this section, and the penalty for violations thereof shall be the same as the penalty for violations of this section.
10. PERMIT SUSPENSION AND REVOCATION. a. Any permit issued in accordance with this section shall be subject to summary revocation by the commissioner or any of the commissioner's authorized agents at any time that the holder thereof is guilty of a violation of any of the provisions of this code or state laws governing the sale or handling of food. Any person to whom an order is issued shall immediately comply with the order, but upon written petition to the commissioner, shall be afforded a hearing before the food license review board within 10 working days of the petition.
b. Whenever the commissioner finds unsanitary or other conditions related to the
operation of a food peddler which are in violation of this section, rules and regulations adopted by the commissioner, state statutes or rules promulgated by an agency of the state, and the violations, in the commissioner's opinion, constitute a substantial hazard to the public health, safety and welfare, the commissioner may, without warning, notice or hearing, issue a written order to the permit holder, operator or employee in charge of the food peddler operation citing the condition, specifying the corrective action to be taken, and specifying the time period within which the action shall be taken. If the commissioner deems it necessary, the order shall state that the permit shall be immediately suspended and all food service operations shall be immediately discontinued. The commissioner shall promptly notify the city clerk of any suspension. Any person to whom an order is issued shall immediately comply with the order, but upon written petition to the commissioner, shall be afforded a hearing before the food license review board within 10 working days of the petition. Failure to allow an inspector immediate access to determine whether such grounds exist shall be grounds for suspension, and the commissioner shall promptly notify the city clerk of this failure.
c. For serious or repeated violations of any of the requirements of this section, or for interference with the commissioner in the performance of his or her duties, a permit may be revoked after an opportunity for a hearing has been provided by the food license review board. Prior to such action, the commissioner shall notify the permit holder in writing, stating the reasons for which the permit shall be subject to revocation, and advising that the permit shall be revoked at the end of 5 working days following service of the notice, unless the permit holder files with the commissioner a request for a hearing within the 5-day period. The commissioner shall promptly notify the city clerk of any revocation.
d. The commissioner may, following the same procedures set forth in pars. a to c, suspend or revoke only the portion of a permit allowing late-night sales pursuant to sub. 6-b.
e. The hearings provided for in this section shall be conducted by the food license review board at a time and place designated by the commissioner. Based upon the record of the hearing, the commissioner shall be charged with enforcing the decision of the board. The commissioner shall furnish the permit holder and the city clerk with a written report of the hearing decision.
f. No person, association or corporation may operate after a permit suspension or revocation unless the suspension is released in writing or the revocation is not upheld by the food license review board or court.
11. PENALTIES. a. Any person who shall sell any food product from any vehicle or any carried container as described in this section without having first received a permit in accordance with the provisions of this section, or who shall violate any of the other provisions of this section, except sub. 7-c, g to j and sub. 8-d to i, shall be subject to penalty as set forth in s. 61-8.
b. A person who violates sub. 7-c, g to j and sub. 8-d to i shall be subject, at the discretion of the court, to any or all of the following penalties:
b-1. A forfeiture of not less than $20 nor more than $200 for each violation.
b-2. A suspension of the peddler permit sticker described under sub. 6-d for not less than 10 days nor more than 30 days, or a revocation of the identifying device for the remainder of its term.
b-3. A suspension of the food peddler's license for not less than 10 days nor more than 30 days, or a revocation of the food peddler's license for the remainder of its term.
c. At the discretion of the court, a penalty under par. b may be imposed as follows:
c-1. A penalty may be imposed on an agent.
c-2. Whenever the court finds that the business, organization or person that holds the food peddler's permit under which the agent's sales are made has failed to properly supervise the agent, a penalty may be imposed on the business, organization or person.
c-3. A penalty as described under subds. 1 and 2 may be imposed on both an
agent and the business, organization or person that holds the food peddler's permit under which the agent's sales are made.
Part 3. Section 74-3-2-c of the code is amended to read:
74-3. Peddling of Food by Minors.
2. DEFINITIONS.
c. "Food" has the meaning ascribed at [[s. 74-1-1.5-b]] >>s. 74-1-2-c<<, and includes canned or bottled soda, water, and all other beverages.
Part 4. Section 74-3-4 of the code is amended to read:
4. EXCEPTION. The provisions of sub. 3-d shall not apply when the roadway, street or alley has been closed to traffic under [[s. 74-1-2-b]] >>s. 74-1-7-d-1<< and the minor food peddler and any responsible older youth or adult are otherwise in compliance with this chapter and with the provisions of chs. 68 to 73 and s. 75-25, where applicable.
LRB
APPROVED AS TO FORM
________________________
Legislative Reference Bureau
Date:______________________
Attorney
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
_____________________________
Office of the City Attorney
Date:________________________
Requestor
Drafter
LRB130343-2
Amy E. Hefter
3/26/2012
Clerical correction made -- Jim Owczarski -- April 4, 2012