COUNCIL OF THE CITY OF PHILADELPHIA PUBLIC HEARING BEFORE THE COMMITTEE OF THE WHOLE - - - Room 400, City Hall Philadelphia, Pennsylvania Thursday, April 16, 1998 10:00 a.m. - - - BILL NO. 980022 - Amending Section 9-206 of the Philadelphia Code, entitled"Sidewalk Vendors in Neighborhood Districts." - - - PRESENT: COUNCILMAN JOHN F. STREET, Chair COUNCILWOMAN ANNA C. VERNA, Vice-Chair COUNCILWOMAN HAPPY FERNANDEZ COUNCILMAN JAMES F. KENNEY COUNCILMAN W. THACHER LONGSTRETH COUNCILWOMAN AUGUSTA A. CLARK COUNCILMAN DAVID COHEN COUNCILMAN FRANK RIZZO COUNCILMAN ANGEL ORTIZ COUNCILMAN FRANK DiCICCO COUNCILWOMAN JANNIE L. BLACKWELL COUNCILMAN MICHAEL A. NUTTER COUNCILWOMAN JOAN L. KRAJEWSKI COUNCILMAN RICHARD T. MARIANO COUNCILWOMAN DONNA REED MILLER COUNCILMAN BRIAN J. O'NEILL - - - VINCENT VARALLO ASSOCIATES, INC. Registered Professional Reporters Eleven Penn Center Plaza, Suite 600 Philadelphia, PA 19103 (215) 561-2220 I N D E X BILL 980022 Public Meeting---------------------------------- - - - 3 BILL 980022
May I have your attention, please. I would appreciate it very much if the people in the balcony would please hold down your voices. Those folks in the balcony, we would appreciate it very much if you would be respectful of this Council. Thank you very much. This is a recessed hearing of the Council Committee of the Whole. We have under consideration Bill No. 13 980022, which is a bill amending Section 9-206 of the Philadelphia Code entitled "Sidewalk Vendors in Neighborhood Business Districts," by designating the University of Pennsylvania, the area in the general vicinity of the campus of the University of Pennsylvania in West Philadelphia as a Neighborhood Business District in which sidewalk vending is regulated pursuant to Section 9-206, enacting special provisions regulating vending, both sidewalk vendors and street vendors, in University City, all under terms and conditions. This record shall reflect that we had an all-day Public Hearing I guess on Tuesday, April 4 BILL 980022 14. That hearing was recessed until Wednesday morning at 8:30, at which time we had additional Public Hearing. The hearing was then recessed until this morning. The Chair notes that a quorum is present. Does any Council member have anything to add to the Public Hearing record? If not, this brings us to the end of our Public Hearing. We will now go into our Public Meeting. I have three things to distribute to the members of City Council. I have a letter that I have received, dated April 15, 1998, from Carol R. Scheman, Vice-President for Government, Community and Public Affairs. The letter reads as follows -- I will make this letter available in full form to members of the City Council and, as available, to members of the press. "In light of the concerns expressed by the Department of Licenses & Inspections regarding the inclusion of language in Bill No. 24 980022 establishing a Vending Advisory Board, we would like to express once again our willingness to 5 PUBLIC MEETING participate in any form City Council and the Department would consider appropriate to ensure the smooth implementation of the vending ordinance and to address issues that may arise in the future as vending in University City continues to evolve. "We anticipate that our neighbor institutions, such as the University City Science Center and the Children's Hospital of Philadelphia, would also participate in this forum. " This letter was written to the Chair for the members of Council because it is the sentiment of this Council that we should not establish the Vendor Advisory Board by way of this ordinance. I have talked to Councilwoman Blackwell about this, and she has advised me that she will work with the University of Pennsylvania, 6 PUBLIC MEETING the Department of Licenses & Inspections, vendors, and others in the area to make sure that an opportunity exists for everyone that's impacted by the bill that we are about to report from this committee is involved in the process. We will leave it to her discretion, as the district Councilperson, along with the other people involved, to make sure that such an advisory group is put into place. And I think that that pretty much satisfies the University's need to work with the community, the various communities, involved, as well as our interests as a City Council. So I will make a copy of this letter available. Now, there are also some proposed amendments. The proposed amendments do several things. One, they delete any reference to Vending Advisory Board. They delete all references to a Vending Advisory Board. And there are several references, and you will see that. I will pass them out in a minute. " This language is not deleted; it is inserted in the bill because what it does is, gives the Department of Licenses & Inspections the right to device a seniority process in the allocation of the existing spots.
There is also a proposed amendment which allows the Department of Licenses & Inspections to collect the $2,750 annual fee from those people who will be operating trucks in spots that otherwise would be metered parking spots. And this section refers to the other part of the code, which allows this procedure to be implemented. The effective date of the bill was changed, so that the bill will take effect 90 days after it becomes law. I think the University agrees, and certainly the Department agrees, that this is not a bill that can be implemented on a 8 PUBLIC MEETING day's notice. What I would like at this time to do is circulate a copy of the pink bill, which is not pink because it is a copy, with the proposed amendments marked on it; a copy of the letter from the University of Pennsylvania; and a copy of the proposed amendments as amendments. And we'll take just a minute to have Councilmembers take a look at them. When every member of Council has a copy, please make them available to the press. Will Councilman Nutter please approach the Chair. I would also like to call attention specifically to of the bill, the marked-up bill, which eliminates Section J and J(3), which is a provision that would have allowed a person with a stand to convey that stand to another person, as in selling the rights to them. This provision is eliminated. And substituted for it is the amendment which provides for the $2,750 in lieu of the metered fees that would be paid under the parking. And I think that that is probably 9 PUBLIC MEETING very appropriate, given the problems that Councilwoman Miller has indicated that she is having in her area, you know, with the whole parking meter situation. Now, does every member have a copy of the letter, a copy of the proposed amendments, and a copy of the bill as marked up? Is there any member who does not have it? The Chair recognizes Councilman Kenney.
Thank you, Mr. President. On , relative to the insertion language on reimbursement for the $2,750, is there something specific that would indicate that this money is going to the city General Fund, and not to the Parking Authority?
How will we ensure that that money is paid to the city, and not to the Parking Authority?
Because it gets paid to the Department of Licenses & Inspections. And once it gets paid to the Department of Licenses 10 PUBLIC MEETING & Inspections, then it goes into the General Fund, as do all other fees collected by that department.
Do you believe that because of the ambiguity, there may be any opportunity for the Parking Authority to make a claim that this money would come to them?
Not really. I am very comfortable that when L & I gets the money, nobody else touches it.
L & I gets the money. And L & I really has no authority to transfer that money to anybody else, in any event. I mean, I can guarantee you that the Finance Department -- I mean, I don't know how L & I would even be able to physically give money that it collects to the Parking Authority.
I just want to make sure that the record is clear from our discussion in the hearing and today that this money be paid to the city and not to the Parking Authority.
Certainly. Does any other member of Council have any question? Councilman Nutter.
Thank, you Mr. President. One question to follow up Councilman Kenney. And, first, I apologize for having to ask both of these questions. I think I missed the Parking Authority testimony yesterday morning. Who is actually going to remove these meters?
The meters will be removed by the Parking Authority, working with the Department of Licenses & Inspections.
Right. And, again, with no anticipated reimbursement for their services in removing meters?
Okay. Any other question? The Chair recognizes Councilman 12 PUBLIC MEETING Cohen.
As an old English teacher, I would like to suggest that the word "effected" on begins with the letter A, and not the letter E. The first word in the bottom line. I don't think it needs an amendment; I'm just suggesting the correction.
Thank you very much, Councilman. First letter of the first word in the last line. Is there any other question from any other member? The Chair recognizes Councilwoman Blackwell.
Thank you, Mr. President. Would you speak, the vendors have just spoken and are concerned about the 13 PUBLIC MEETING transferability clause. I have not spoken with them about it. And they are not pleased with this section. They are particularly upset with this section of the bill, with that section being deleted. Would you please speak to this.
Yes. I think it is the overwhelming sentiment of the members of Council that we are, the City of Philadelphia, is going significantly beyond where we traditionally go when we say a person who is vending in the public way not only has a right to vend in a public way, but has a right to establish a business, and then to transfer that business for a profit, a business which has taken place on someone else's property pursuant to an easement that the property owner gives up to the public generally. There would really only be two ways that a person could use private property of another person. One would be if that private party gives the other private party permission to use his or her sidewalk; and, two, is if that private property owner's sidewalk can be used as a result of 14 PUBLIC MEETING an easement or a right that the Commonwealth of Pennsylvania, both through statutes and through common law decisions, reserves from the property owner to the general public. So that it would be unlawful for a property owner to put up a barricade on his or her sidewalk and say, "You may not pass," or, "You must pay to pass." Couldn't do that. But a property owner might be able to allow somebody to conduct some business on parts of his or her sidewalk, assuming that it didn't interfere with the public easement. Now, when we say to a property owner, "You literally must allow people to conduct economic activity on your sidewalk as a part of the public's right-of-way over your property," that's one thing. Then to say, "And these people have a right to establish this economic activity and then sell it to someone else," is another whole different thing. And I think it is the strong view of most Councilmembers that we do not want to establish that precedent here in this bill. 15 PUBLIC MEETING
Thank you. In the discussion, seeing that part of the question was transferring a spot, as opposed to transferring a business, I don't know how legally we could -- because the discussion just came up yesterday or the day before in our hearings about the ability to transfer business, as opposed to transferring a spot. And I don't know that that was resolved legally, as to how that could happen.
Thank you. Let me also say that we certainly did support the vendors in this agreement, and prevailed upon Penn, and that is why it is in the ordinance, 16 PUBLIC MEETING the original ordinance, because it was one of the concessions that Penn made to the vendors to allow them to try to transfer a license at the time of retirement. If a person vends years and 7 decides they are at that age they would like to let 8 it go, it would give them a chance to get a little 9 nest egg, so that they could move on and retire, and 10 then the next person would have the license, et 11 cetera, in their name. 12 So the spirit of it was a positive 13 one, and we were trying to come up with some way to 14 do this. But apparently how we do that seems to be 15 the crux of the problem where we are, how that can 16 happen. 17
Mr. President, 20 coming as late as I am, I am totally without any benefit of any previous discussion. But it does seem to me clear that a person is free to sell that part of the business that he or she can pick up and take with them. Therefore, if you have a cart and you 17 PUBLIC MEETING have merchandise and you have good will, which I guess you could carry on your balance sheet as a dollar, you can sell that to anybody you want to. But the right to maintain an easement, which was never yours in the first place, you can only divide that which is yours. It was never in the vendor; it was, at best, a grant of a permission. You can't raise that to the level of a property right, so that they can then sell it, rent it, lease it, or divide it by will. That is in such derogation of the property rights as to be an outright taking. And I would think that the University would not give it away, and certainly we as legislators should not codify such bad law into a piece of legislation.
Thank you very much. The Chair recognizes Councilman Kenney.
Thank you, Mr. President. I agree wholeheartedly with Councilwoman Clark on this issue. We have to remember that nine times 18 PUBLIC MEETING out of ten, these vendors are vending on the public highway or on the public side of the pavement. It is not only a private property right, it is a public right. And even hypothetically if we thought it was good public policy to allow that conveyance, there would have to be a price associated with that conveyance. They would have to have an assessment of that property and its value, and that individual would have to pay for that all in turn. I am not suggesting that we do that. The way you get around this issue is to have the vendor buy a property, as every other retail businessperson in the city does, establish a business, and they can sell that property 20, 18 years from now, as every other retail business 19 establishment does. 20 But to get into the opportunity or 21 possibility of selling public right-of-way because 22 an individual has put a hot dog cart or a truck 23 there makes absolutely no sense whatsoever. 24 And I think we are getting in a very, 25 very tricky legal and public policy area there, and 19 PUBLIC MEETING would not support that in any way. Thank you, Mr. President.
Thank you very much. The Chair recognizes Councilman Nutter.
Thank you, Mr. President. So by way of process, I agree with the comments of all of my colleagues. We certainly cannot allow our Code to put into effect something that we're not in the middle of, have no authority to grant in the first place. So we cannot be in the middle of these transactions anyway. The process for picking or deciding who gets what spot, I assume now, is totally covered by Letter B on of the bill, that talks about the Department shall promulgate regulations devising procedures to choose among applicants for a particular block face or location, including but not limited to preference based on seniority. Now that this provision has been appropriately removed, I assume that when the person sells or when a space becomes available, it will be 20 PUBLIC MEETING left in the normal course to the Department of Licenses & Inspections to determine who ends up in that spot? Mr. President, if you could just say yes, I would appreciate it.
Mr. President, I have a pending question, to which I believe the answer is yes, but I will --
The question is, after agreeing with all of my colleagues that the process and procedure now, if a person should engage in this private transaction between two vendors, which we are choosing not to codify in the Philadelphia Code, I'm now assuming that the process for deciding who gets in what space is now fully governed by Letter B on , that talks about the Department figuring out who gets in what block face or what space?
Yes. And what we have done is, if we adopt this amendment, we refuse 21 PUBLIC MEETING to involve the city in any of that. And if people want to try to fraudulently get around the process that will be set up by the Department of Licenses & Inspections for allocating these spots on the seniority basis, working with Councilwoman Blackwell, they can try to do that.
Maybe we will, maybe we won't. But I will tell you, if I were a buyer, I would be very, very careful about surrendering large sums of cash under circumstances that might not be wholly legal and which might very well be set aside when exposed.
Councilwoman Clark has a big legal word she just put on the record, caveat something.
When you buy something, you make sure you get what you think you bought. If you have an illusory transaction and no quantum of ownership transferred by this sale, you will open your hand and find you have no 10 land and the money is gone. Now, if you want to give some money away, I have nothing against that. But you really ought to know that you can only sell that which you have.
That's the federal law and makes good common sense. If you don't have it, you can't sell it. But if somebody out there wants to buy it, okay.
I just wanted to make sure that everybody knows, there is in fact a controversy. 23 PUBLIC MEETING I've been listening to the discussion, and I think it is a case where we are engaged in a lot of legal technicalities, but distancing ourselves from the realities of the situation. A vendor, like any other businessperson, obviously will decide, will have to decide, do I improve this location, do I make it more attractive, do I bring in some additional equipment which may result in the food tasting better, all sorts of things that businessmen have to deal with. It is unrealistic to expect vendors to want to put in money, if all that's going to happen at the end is that they lose it. And, therefore, I am suggesting that this is a realistic problem. We may not be able to solve it today, but I think it is something that deserves our attention. If we say we treat vendors as businesspeople -- and we have said that during the course of this discussion -- then I think we have to do something to see that they are treated in a fairer method. 24 PUBLIC MEETING I don't see how we can resolve that question today, but I just want to make it clear, I think it is a live problem that has to be dealt with.
Is there anyone else who wishes to comment at this time? Hopefully not. Thank you very much. This brings us to the end of our Public Hearing officially. (Public Hearing adjourned.) - - - 25 COUNCIL OF THE CITY OF PHILADELPHIA PUBLIC MEETING of the COMMITTEE OF THE WHOLE - - - Thursday, April 1998 8 - - - 9 Public Meeting conducted by the Committee 10 of the Whole, held in Room 400, City Hall, 11 Philadelphia, Pennsylvania, on the above date, to 12 consider action on the following: 13 BILL 980022 14 - - - 15 PRESENT: 16 COUNCILMAN JOHN F. STREET, Chair COUNCILWOMAN ANNA C. VERNA, Vice-Chair COUNCILWOMAN HAPPY FERNANDEZ COUNCILMAN JAMES F. KENNEY COUNCILMAN W. THACHER LONGSTRETH COUNCILWOMAN AUGUSTA A. CLARK COUNCILMAN DAVID COHEN COUNCILMAN FRANK RIZZO COUNCILMAN ANGEL ORTIZ COUNCILMAN FRANK DiCICCO COUNCILWOMAN JANNIE L. BLACKWELL COUNCILMAN MICHAEL A. NUTTER COUNCILWOMAN JOAN L. KRAJEWSKI COUNCILMAN RICHARD T. MARIANO COUNCILWOMAN DONNA REED MILLER COUNCILMAN BRIAN J. O'NEILL - - - PUBLIC MEETING
We are now in our Public Meeting. The Chair recognizes Councilwoman Blackwell for a motion that the proposed amendments be adopted.
All in favor let it be known by saying aye. Those opposed say nay. The ayes have it. The amendments are adopted. The Chair recognizes Councilwoman Verna for a motion on Bill No. 980022.
Mr. President, I move that Bill No. 980022 be reported out of committee with a favorable recommendation, as amended. (Duly seconded.)
All in favor let it be known by saying aye. Those opposed say nay. The ayes have it. 27 PUBLIC MEETING
Excuse me. Is there a request for suspension? Therefore, I also move that the Rules of Council be suspended so as to permit consideration at our next session of Council. (Duly seconded.)
All in favor let it be known by saying aye. Those opposed say nay. The ayes have it. Bill No. 980022 will be reported from this committee with a favorable recommendation, and a recommendation that the Rules of Council be suspended to permit first reading at our next session of Council. Thank you very much. We would appreciate it very much if the members of City Council would go to the Council Caucus Room at your leisure. (Public Meeting adjourned at 10:35 a.m.) - - - 28 C E R T I F I C A T I O N I HEREBY CERTIFY that the foregoing proceedings of the Council of the City of Philadelphia of Thursday, April 16, 1998, were reported fully and accurately by me, and that this is a correct transcript of same. RE: COMMITTEE OF THE WHOLE _____________________________________ DEBRA A. WHITEHEAD, RPR