13.20.040 - Selling merchandise prohibited on and near public right-of-way.
A. Definitions. The following definitions shall apply in this section:
1. "Arterial" means a "street, arterial" as defined under "street" in Section 19.50.030 this Code.
2. "Business day" means a Monday, Tuesday, Wednesday, Thursday or Friday excluding any holiday observed by the City of El Paso where city administrative offices are closed.
3. Reserved.
4. "The downtown area" means the area bounded by Yandell Street, Kansas Street, Cesar Chavez/Border Highway and Santa Fe Street, and including the entire width of the public rights-of-way.
5. "Obstruct" means to render impassable or to render passage unreasonably inconvenient or hazardous.
6. "Public right-of-way" shall have the meaning set forth in Section 19.50.030 of this Code.
7. "Stand" means any structure, machine, box, table, container, vessel, vehicle, utility post or pole, traffic control signs or signals, building or any other thing located, placed, stopped or allowed to remain upon, over or along any street, sidewalk, alley, square, park, or public right-of-way or any portion thereof within the city.
8. "Vehicle" means any vehicle, motorized or nonmotorized, bicycle, cart, boat or other watercraft, trailer, recreational vehicle or camper.
B. Except as provided below or permitted elsewhere in this Code, it is unlawful to:
1. Have, keep, maintain, run or conduct a stand in or upon or over or along any street, sidewalk, alley, square, park or other public right-of-way, or any portion thereof within the city.
2. Sell, offer for sale, or expose to sale any commodity, goods, wares, merchandise, produce, other farm products, candy, sodas and other like refreshments, new or used vehicles, or any other articles or things of value of any kind in, from, out of or affixed to a stand, or by placement of such items directly upon the ground over or along any street, sidewalk, alley, square, park or other public right-of-way.
3. Have, keep, maintain, run or conduct a stand in or upon public or private property along an arterial or on any portion of a vacant lot that abuts an arterial.
4. Sell, offer for sale or expose to sale any commodity, goods, wares, merchandise, produce, other farm products, candy, sodas and other edible or potable substances, new or used vehicles, or any other articles or things of value outside of a permanent building in, from, or out of a stand, or by placement of such items directly upon the ground upon public or private property along an arterial or on any portion of a vacant lot that abuts an arterial.
5. Knowingly allow any person, firm or corporation to have, keep, maintain, run or conduct a stand or sell, offer for sale or expose to sale any commodity, goods, wares, merchandise, produce, other farm products, candy, sodas and other edible or potable substances, new or used vehicles, or any other things of value outside of a permanent building in, from, or out of or affixed to a stand, or by placement of such items directly upon the ground on property along an arterial or on any portion of a vacant lot that abuts an arterial unless such sale is permitted under this section.
C. The prohibitions contained in subsection B. shall not apply to the following types of sales, including offers for sale or exposures to sale, provided that the requirements of all other applicable city code provisions are met, including but not limited to zoning regulations, licensing requirements and health regulations:
1. A sale of newspapers, pamphlets, handbills or other written or printed matter or merchandise held and sold by a person, provided that no materials or items to be offered for sale by the person are placed or stored on the public right-of-way prior to the time of sale.
2. The distribution or delivery of newspapers from a vehicle.
3. A sale from a stand of newspapers, pamphlets, handbills or other written or printed matter or merchandise sold or distributed for the purpose of disseminating news, information or religious materials, provided that such stand complies with the requirements imposed under Chapter 12.68 of this Code, does not obstruct any street, sidewalk, alley or any other public right-of-way or any elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access or any parking lot or area or the exit from a parked vehicle.
4. A sale authorized through the grant of a special privilege by the city council or another sale authorized by ordinance or permit for use of the sidewalk area within public right-of-way pursuant to the requirements of the City Charter and any other applicable city ordinances within the downtown area.
5. A sale authorized through the grant by city council of a special privilege for use of the public right-of-way in compliance with the requirements of Section 15.08.120 of this Code.
6. A person, firm or corporation who is an authorized and duly licensed dealer of motor vehicles and the person, firm or corporation is selling or offering such vehicles for sale at the location named in the license issued to the person, firm or corporation under Chapter 5.72 of this Code.
7. The owner of a vehicle who offers a vehicle titled in his or her name for sale at the owner's place of residence, in accordance with the Texas Transportation Code, as amended, regarding the sale and transfer of used motor vehicles.
8. The sale of food by a licensed food establishment, including a temporary or recurrent food establishment, operating in accordance with the requirements of Chapter 9.12 of this Code and applicable zoning requirements, provided that no sales or offers of sales take place on land located within the public right-of-way unless such sale is also authorized in accordance with subsection C.4. or 5. of this section.
9. A sale by a licensed mobile food vendor operating in compliance with Chapters 9.12 and 12.46 of this Code.
10. A yard, garage, or rummage sale conducted as permitted under Title 20 of this Code.
11. A temporary sale of merchandise of the same kind normally sold by a business in a location outside of the permanent structure provided that the location on which the merchandise is sold, offered or exposed for sale is immediately adjacent to the front or side of the structure normally occupied by the business and it is on land that is owned or leased by the business and not part of the public right-of-way unless such sale is also authorized in accordance with subsection C.5. of this section, and the time period for such sale does not exceed fourteen consecutive days during any thirty-day period.
12. The storage of supplies, merchandise, equipment or goods normally carried in stock, used, produced or sold by a business in conformity with a permitted accessory use authorized under Title 20 of this Code.
13. A sale of merchandise such as ice, firewood and filled propane tanks sold by a business from display units specially constructed for such purpose and located immediately adjacent to the permanent structure of the business.
14. The sale of propane and motor vehicle fuels.
15. The sale of items from a vending machine or machine primarily serving as an automated teller machine.
16. The sale of items under a tent or temporary structure for which a permit has been issued under and in accordance with Chapter 18.02 of this Code, provided that no items are sold, offered for sale or exposed for sale at a location within one hundred feet of the closest edge of the paved portion of an arterial.
17. The sale of items at a flea market for which a permit has been issued under and in accordance with Chapter 20.08 of this Code.
18. The sale of items at an outdoor market as defined in and for which a permit has been issued under and in accordance with Chapter 9.12 of this Code, provided that no items are sold, offered for sale or exposed for sale at a location within one hundred feet of the closest edge of the paved portion of an arterial.
19. The sale of items in conjunction with a circus, show or carnival for which a permit has been issued under and in accordance with Chapter 5.20 of this Code, provided that no items are sold, offered for sale or exposed for sale at a location within one hundred feet of the closest edge of the paved portion of an arterial.
D. Members of the police department, members of the code enforcement division, the director of the department of public health, and the director of the environmental services department, and their designees may enter upon any vacant land or premises that are open to the public for business or other public purposes to inspect, enforce or to perform any function permitted under this section.
E. Members of the police department are authorized to cause any goods, wares, merchandise, produce, other farm products, candy, sodas and other edible or potable substances, new or used vehicles, or any other articles, or things of value being sold or offered or exposed for sale in violation of this section, or a stand used in connection with the sale of such items, to be removed and stored at the owner's, seller's or operator of a vehicle's expense if:
1. The owner, seller or operator of a vehicle has been given actual notice that the items being sold or offered or exposed for sale are in violation of this section; or
2. A conspicuous notice on a form developed by the city has been conspicuously attached to the vehicle or to any one of the goods or other items of merchandise or things of value stating:
a. That the vehicle or other items will be removed and stored at the expense of the owner or vehicle operator if they are not removed from the area by a specified time and date, such time and date not being sooner than twelve hours after the notice is attached to the vehicle or other items, and
b. A telephone number that is answered twenty-four hours a day to enable the vehicle or other items to be located.
F. In addition to the requirements of subsection E of this section, when a vehicle is removed, a notice must be mailed no later than the second business day after a vehicle was removed for a vehicle registered in the state of Texas and no later than the tenth business day after a vehicle was removed for a vehicle registered outside the state of Texas, to the last address shown for the owner and lienholder of record, if any, according to vehicle registration records available to the police department, or if the vehicle is registered in another state or country and the name or address of the owner or lienholder cannot be determined, to the appropriate agency of that state or country, stating:
1. A description of the vehicle;
2. That the vehicle was parked in violation of this section with a description of the location where it was parked;
3. That the vehicle was removed and stored at the expense of the owner or operator of the vehicle; and
4. A telephone number that is answered twenty-four hours a day to enable the owner or operator to locate the vehicle.
G. When a vehicle or any other item was removed pursuant to this section, and the vehicle or other items are not claimed by the owner or operator within fourteen days, the following provisions shall apply to the disposition of the vehicle or other item.
1. The provisions of the Texas Transportation Code, as amended, regarding motor vehicles abandoned in a vehicle storage facility shall apply to the disposition of a vehicle other than a bicycle.
2. For all other unclaimed items, a notice must be published in a newspaper of general circulation in the city stating:
a. A description of the items;
b. That the items were offered for sale in violation of this section with a description of the location where they were located;
c. That the items were removed and stored at the expense of the owner of the items; and
d. A telephone number that is answered twenty-four hours a day to enable the owner to locate the items.
3. Any items other than motor vehicles remaining unclaimed after thirty days after the date notice is given or published under this subsection shall be disposed of in accordance with the provisions of Article 18.17, Texas Code of Criminal Procedure, as amended.
H. If the items to be stored are edible or potable and they are contained in an open, exposed container, they are readily perishable in their present condition, or they are in need of refrigerated storage to avert spoilage, and the member of the police department has a reasonable belief that the storage of such items may constitute an imminent health hazard, the member of the police department may notify the director of the department of public health or designee who may take action in accordance with Chapter 9.12 of this Code.
I. The city council, by resolution, shall adopt a fee schedule for the charges to be imposed for the removal and storage of items under this section. Such charges shall be based on the city's costs for such removal and storage and the charges for the removal and storage of vehicles established in Section 12.08.220 of this Code.
J. An owner or operator of a vehicle other than a bicycle removed and stored under this section shall be entitled to the rights of owners of stored vehicles as set forth in Chapter 685, Texas Transportation Code, as amended, and to a post-deprivation hearing as provided in Section 12.08.220 of this code. An owner of any other item removed and stored under this section shall be entitled to a post-deprivation hearing to be conducted in the same manner as provided in Section 12.08.220 of this Code.
K. Any person violating any provision of this section shall be guilty of a misdemeanor and punished by a fine of not less than one hundred dollars nor more than five hundred dollars.
(Ord. 16982 § 7, 2008; Ord. 16819 §§ 4, 5, 2008; Ord. 14841 § 1, 2001: Ord. 11410 § 1, 1993: Ord. 11146 § 1, 1992: prior code § 19-7) (Ord. No. 17391, § 11, 8-24-2010, eff. 9-1-2010; Ord. No. 17361, § 1, 7-20-2010; Ord. No. 17582, § 1, 6-14-2011)
