BOROUGH OF AVALON CAPE MAY COUNTY NEW JERSEY ORDINANCE No. 773-2018 AN ORDINANCE AMENDING AND SUPPLEMENTING CHAPTER 10 OF THE CODE OF THE BOROUGH OF AVALON, 2013 (LICENSES AND PERMITS) SECTION 4 (PEDDLERS AND HAWKERS) AND REPEALING PORTIONS OF ORDINANCE 738-2016 BE IT ORDAINED by the Borough Council of the Borough of Avalon in the County of Cape May and State of New Jersey as follows: SECTION 1. Chapter 10 of the Code of the Borough of Avalon, 2013 entitled Licenses and Permits Section 4 entitled Peddlers and Hawkers is amended and supplemented, and shall hereafter provide as follows: 10-4 PEDDLERS AND HAWKERS. Sections 10-4.1 through 10-4.13 are repealed and shall be replaced with the following provisions. 10-4.14 Findings of Fact. A. The Borough has a permanent year-round population of approximately two (2) thousand residents which, during the period from Memorial Day through mid- September increases to over thirty (30) thousand inhabitants. This increase in population because of summer residents and visitors greatly increases traffic congestion, demands for on-street parking, as well as bicycle and pedestrian traffic. Vending trucks which sell ice cream, ice cream products, and bottled water and soda add to the vehicular and pedestrian traffic congestion by parking to sell products and thereby also creating safety concerns. In the exercise of its judgment and discretion, and in the exercise of the authority granted to all municipal governments pursuant to State Statute (N.J.S.A. 45:24-9 et seq.), Borough Council has determined that it is in the interest of public safety and welfare to restrict peddling to those vending or food trucks engaged in the sale of ice cream and ice cream products in keeping with a long-standing policy of the Borough. By restricting vending trucks to those selling ice cream products will serve to lessen congestion on Borough streets and promote public safety. 10-4.15. Definitions. The definitions set forth in Chapter 1-2 of the Code of the Borough of Avalon, 2013 ( Code or Borough Code ) shall apply to this Chapter and section together with the definitions which follow. As used in this section: Borough shall mean the Borough of Avalon in the County of Cape May and State of New Jersey. Conveyance shall mean a food truck, ice cream truck or vending truck as defined herein. Delivery Ticket shall mean a written or digital order form which shall be in the possession of the delivery person and produced on demand of any Police Officer or the Code Enforcement Official and which shall contain the information required by this Chapter.
Food Truck or ice cream truck or vending truck shall mean a motor vehicle validly registered in the State of New Jersey and bearing a current valid certificate of inspection from the Cape May County Department of Health and from which is sold only ice cream, ice cream products, bottled water and soda intended for immediate or reasonably prompt consumption. Other than these specific and designated products no other type food or food products may be sold or distributed from such vehicle. Hawker shall mean a person who sells by outcry. Ice Cream Truck see definition of food truck. Peddler shall mean a person who travels about with ice cream, ice cream products, and bottled water and soda for sale or distribution from a motor vehicle or other means of conveyance. The term shall not mean or include the delivery of food, goods, wares or merchandise that has been pre-ordered and is being delivered to a specific destination or location within the Borough and with a delivery ticket in the possession of the delivery person. Person shall mean any individual, natural person, partnerships, joint ventures, societies, associations, clubs, trustees, trusts, corporations, limited liability companies or unincorporated groups; or any officers, agents, employees, servants, factors or any kind of personal representatives of any thereof in any capacity, acting either for himself or for any other person, under either personal appointment or pursuant to law. {Source: Code 1-2] Sale shall mean and include any sale, rental or distribution, offer for sale, rental or distribution or an attempt, directly or indirectly, to sell, rent, or distribute. [Source: N.J.S.A. 56: 8-1(e)] (Ord. No. 738-2016 2) Vending truck shall mean a food truck or ice cream truck or conveyance as defined herein. Ware or Wares shall mean and include both merchandise and services. The term(s) shall include any piece or kind of goods that a store, merchant, peddler or other vendor or seller has to sell, rent or distribute and shall include any skill or service that one seeks to sell, rent or distribute. (Ord. No. 738-2016 2) Cross Reference: See Sections 9-6.3 of Code of the Borough of Avalon, 2013. (2000 Code 10:3.1; Ord. No. 738-2016 2; Ord. No. 773-2018) 10-4.16. Hawking Prohibited. Hawking, as defined herein (selling by outcry), is prohibited within the Borough. 10-4.17. License Required; Criminal History Background Check Required. A. It shall be unlawful for any person to engage in peddling without first obtaining a permit and license as provided by this section. (2000 Code 10:3.2) B. As a condition for being granted a license under this chapter, each license applicant and each driver or other employee engaged in selling or vending shall consent to a full criminal history background check, including fingerprints, annually prior to the issuance or renewal of any license to peddle. The applicant and employee shall follow the same procedure set forth in Chapter 5 of this Code pertaining to employees and volunteers having contact with minors.
10-4.18. License Fee; Term and Expiration. A. The license fee for a peddler shall be seven hundred fifty ($750.00) dollars per year. The fee shall cover the entire business entity and shall include the use of one (1) vehicle. Any additional vehicle used in the operation of the business shall require an additional license fee of one hundred fifty ($150.00) dollars. It is the intention of this subsection to license the business with an additional fee to be charged for each vehicle in excess of one (1). Each individual peddler does not have to pay an individual fee, but each such individual must submit the required information and must otherwise comply with the provisions of all subsections thereof. B. The term of the license shall correspond with the calendar year and all such licenses shall expire at midnight on December 31 of each year. No portion of the fee shall be pro-rated for any part of the year. 10-4.19. Food Trucks; Eligibility for License to Peddle; Restrictions on items sold A. Peddler s licenses are restricted to the owner/operator of an ice cream truck and shall be issued upon the filing of a completed license application, and following the completion of a satisfactory criminal history background check and compliance with other requirements and conditions of this chapter. B. Such Ice Cream Trucks (sometimes referred to as food trucks or vending trucks) are restricted to the sale of only ice cream, ice cream products, and bottled water and soda which are intended for immediate or reasonably immediate consumption by a consumer or customer. No other food or food products nor any other wares, goods, merchandise or service shall be sold or distributed from such vehicle(s). (Ord No 773-2018) 10-4.20. Use of Streets; Restrictions on Time in any Location. An ice cream truck may stop in the public streets only for the time necessary to vend, sell or solicit to and from people in the immediate vicinity and subject to the provisions and restrictions of this section as follows: A. Any such vehicle shall park for such stops near the curb of the street and on the right hand side in the direction it is proceeding, and shall not impede, obstruct or otherwise interfere with normal traffic in the immediate area. B. Any such vehicle shall be permitted to remain in any given location for a maximum period of as follows: i. thirty (30) minutes at street ends or intersection; and ii. ten (10) minutes at locations other than street ends or intersections, except for those areas specially designated where the time period does not apply, or those areas where such sales are absolutely prohibited. Once having remained in a given location for the maximum permissible time, the ice cream truck shall move to a new location, which shall not be within one (1) city block of such location or within two hundred fifty (250) feet of such location, whichever is greater, for at least one (1) hour.
C. No peddler shall have any exclusive right to any location, nor shall a peddler be permitted to operate in any area where his operations might create a threat to the health, safety or welfare of the general public. For the purpose of this subsection, the judgment of Police Officer, exercised in good faith, shall be deemed conclusive. (2000 Code 10:3-4; Ord. No. 738-2016 2; Ord. No. 773-2018) 10-4.21. Hours of Operation for Peddling; Limitation on number of vehicles. No person shall peddle in the Borough before 11:00 a.m. or after 7:00 p.m., prevailing time, daily including Sundays and holidays. No person or business entity shall utilize more than two vehicles at any given time to engage in the conduct permitted under this section. (Ord. No. 655-2012 1) 10-4.22. Duty to Enforce. It shall be the duty of any Borough Police Officer and Code Enforcement Official to require any person seen peddling, and who is not known by such Officer to be duly licensed, to produce his peddler's license and to enforce the provisions of this section against any person found to be violating the same. (2000 Code 10:3-6) 10-4.23. Exceptions for Veterans and Exempt Firefighters; Special Events Licensees; Preordered food and other items. A. Any veteran or volunteer firefighter who holds a special license issued pursuant to N.J.S.A. 45:24-9 shall be exempted from application for a license, but shall be required to comply with all other applicable provisions of this section. Specifically, veterans and exempt firefighters shall not be required to file a license application with the Borough or pay any license fee. All other requirements of this section shall be complied with and such veteran or exempt firefighter shall produce a valid license issued by the County Clerk upon demand of the police or code enforcement officer. Each veteran and exempt firefighter shall file the required insurance certificate with the Borough Licensing Clerk before vending in the Borough. Cross reference: See Section 10-4.28. B. The provisions of this section shall not apply to any individual or entity that has applied for and received a Special Event Permit issued by the Borough for a specific event and date(s). C. The provisions of this section shall not apply to the delivery of any pre-ordered product in accordance with the provisions of section 10-4.27 herein. (2000 Code 10:3-7) 10-4.24. Inspection of Equipment. The equipment, including vehicles, used by peddlers of ice cream, ice cream products, and bottled water and soda, shall be maintained in a clean and sanitary manner at all times and shall be subject to inspection at any time. All such equipment shall satisfy all applicable health code requirements and be licensed and/or inspected by the appropriate regulatory authority. Any violation found and not immediately corrected, shall be grounds for such provider to be prohibited from doing business in the Borough of Avalon until such violations are abated. Any certification issued by the County Health Department, or other agency having jurisdiction, shall be prominently displayed and shall be produced for inspection upon demand of the police or code enforcement official. (2000 Code 10:3-8; Ord. No. 655-2012)
10-4.25. Areas Where Vending Permitted Without Time Limitation. Notwithstanding the provisions of subsection 10-4.6 hereof, peddling shall be permitted in certain designated areas without regard to the time limitations hereinabove imposed. Such areas are hereby designated as follows: A. From 9th Street to 12th Street on Dune Drive (Avalon Recreation Field) and west on 12th Street for a distance of one hundred (100) feet from the curbline on Dune Drive. 10-4.26. Areas Where Peddling Prohibited. Peddling shall be absolutely prohibited in certain areas of the Borough, in addition to those areas hereinabove set forth, which areas are defined as follows: A. Dune Drive from 20th Street to 34th Street. B. Ocean Drive, also known as Third Avenue, from 20th Street to 34th Street. C. Within seventy-five (75) feet of any corner or intersection of Dune Drive and Ocean Drive also known as Third Avenue, between 20th Street and 34th Street. D. All peddling within two hundred fifty (250) feet or within one (1) city block, whichever is greater, of any church, commercial building or school is hereby prohibited. E. In addition to the prohibitions contained in the beach regulations, as pertaining to peddling, it shall be unlawful to solicit or canvass on the beach, boardwalk and approaches thereto. This prohibition does not apply to street ends subject to the time limitations contained in this section. F. The Borough has determined that the negative impacts on the health, safety and welfare of the citizens of the Borough of Avalon require the prohibition of Peddling in the R-M (Hotel-Motel) District as described in the Borough s Zoning Ordinance. Such activities are not suited to these R-M (Hotel-Motel) District areas and the use of public streets and rights-of-way in these areas for such purposes represents a risk to pedestrians and vehicular traffic. (Ord. No. 655-2012 1) G. The Borough has determined that the negative impacts on the health, safety and welfare of the citizens of the Borough of Avalon require the prohibition of Peddling in the area of the emergency access point to the beach, from the beach entrance westwardly to the nearest perpendicular intersecting street. These locations are 9th Street; 15th Street; 20th Street; 32nd Street; 38th Street; 60th Street and 79th Street. Such activities in these areas have the potential to interfere with or block these emergency access points to the beach. (Ord. No. 655-2012 1) H. On the beach and boardwalk and on the approaches thereto. (Ord. No. 773-2018) Cross Reference: Section 9-6 of the Code of the Borough of Avalon, 2013. (2000 Code 10:3-10; Ord. No. 655-2012; Ord. No. 695-2014 3; Ord. No. 738-2016 2; Ord. No. 773-2018) 10-4.27. Certain Deliveries of Food and Merchandise Exempted from this Chapter; Delivery Ticket Required in Certain Circumstances. A. The term peddler or peddling shall not apply to the delivery of food and other merchandise and wares to any location or destination within the Borough, including the beach and bay, by any established business located within or without the Borough provided that:
i. The food or other merchandise has been pre-ordered; and ii. The delivery of such food or other merchandise is accompanied by a delivery ticket as defined herein and containing all of the required information which delivery ticket shall be in the possession of the delivery person; iii. The absence of a delivery ticket shall constitute presumptive evidence that the delivery is the result of peddling and shall constitute a violation of this chapter. B. Delivery Ticket, as defined herein, shall be in the possession of the delivery person and produced on demand of any Police Officer or the Code Enforcement Official and shall include the following information: i. Proof that the product was pre-ordered for delivery within the Borough; ii. Delivery slip in possession of the driver indicating; iii. The date and time of order; iv. Name of vendor; v. Name of patron ordering product; vi. Address of patron; vii. Phone number of patron; viii. List of all items ordered; ix. Total cost of items being delivered; x. Name or initials of the employee taking the order for such items. C. The vehicle used for the delivery of such items shall not be equipped for any on-board food preparation of any type or description. 10-4.28. Insurance; Borough of Avalon as Additional Insured. A. Every person seeking to engage in peddling in the Borough shall produce evidence of insurance coverage as follows: Type of Coverage General Liability Insurance Automobile Liability Insurance Minimum Limits of Liability $ 1 million for injury to one person; $ 2 million for injury to more than one person $100,000.00 for property damage. $ 1 million B. The Borough shall be designated as an additional insured in said policy or policies. C. A Certificate of Insurance demonstrating compliance with this subsection shall be provided to the Licensing Clerk before the issuance of a license. Failure to provide such Certificate shall be cause for the denial of a license. (Ord. No. 655-2012) 10-4.29. Rules and Regulations Borough Council reserves the right to adopt rules and regulations pertaining to the administration and enforcement of this Chapter and Section. 10-4.30. [RESERVED] 10-4.31. [RESERVED] 10-4.32. [RESERVED}
10-4.33. Violations; Penalty. Any person or entity violating this section or any agent, servant or employee of such person or entity having been issued a license pursuant to this section, who violates any of the provisions of this section shall, upon conviction, in the Municipal Court be subject to the penalty stated in Chapter 1, Section 1-5. The aforesaid penalties may be imposed in addition to any other penalty provided elsewhere herein, including, but not limited to, the revocation of a license. The penalties imposed by this section shall be exclusive of any penalty which may be imposed as a result of any revocation proceeding and such revocation proceeding is exclusive from any penalty imposed pursuant to this section. (2000 Code 10:3-13) SECTION 2. OTHER ORDINANCES The following Ordinances are hereby saved from repeal and shall remain in full force and effect provided that the same are hereby amended to the extent necessary to conform to the provisions of Section 1 hereof: Ordinance No. 655-2012, Ordinance No. 695-2014 SECTION 2. REPEALER. All Ordinances or parts of Ordinances which are in conflict or inconsistent herewith are hereby repealed to the extent of such inconsistency or conflict only. Without limiting the generality of the foregoing statement, Section 2 of Ordinance 738-2016 is repealed. SECTION 3. SEVERABILITY. If any section, paragraph, subdivision, subsection, clause or provision of this Ordinance shall be adjudged invalid, such adjudication shall apply only to the section, paragraph, subdivision, subsection, clause or provision declared invalid and the remainder of this Ordinance shall remain in full force and effect and shall be enforceable. SECTION 4: EFFECTIVE DATE: This Ordinance shall take effect immediately upon final adoption and publication as required by law. NOTICE OF PENDING ORDINANCE The Ordinance published herewith was introduced and passed on first reading of the Municipal Council of the Borough of Avalon on April 11, 2018. It will be further considered for second reading, public hearing and final adoption at a meeting of said Council to be held on the 25 th day of April, 2018 in the Meeting Room of the Municipal Building, Avalon, New Jersey at 4:15 p.m. and during the week prior to and up to and including the date of such meeting, copies of said Ordinance will be made available at the Clerk s Office in said Municipal Building to the members of the general public who shall request the same. C. DANIELLE NOLLETT, Deputy Borough Clerk