The Potential for Mobile Produce Vending in Toronto

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1 Josh Neubauer Toronto Food Strategy Intern August 16, 2011 INTRODUCTION: The Potential for Mobile Produce Vending in Toronto Fresh food retail outlets are unevenly distributed across Toronto s neighbourhoods, and it is often the communities who face the greatest social and economic challenges that also have the most difficulty accessing fresh fruits and vegetables. The Toronto Food Strategy is interested in exploring the potential for mobile vending to improve access to fresh produce in underserved neighbourhoods. Mobile produce vending could take many forms, but in its simplest form would involve a small truck or van selling produce at several locations per day. This presents a flexible, inexpensive food retail solution that does not require large investments of capital or changes to the built environment. Mobile produce vending could also provide income-generating opportunities for entrepreneurs. This report explores the potential for mobile produce vending within Toronto s regulatory environment. Two scenarios are imagined for the sake of simplicity: mobile vending on private property and mobile vending on public roadways. These scenarios are not mutually exclusive, but are separated here because they are subject to different regulations. METHODS: The information in this report was gathered from April-June, 2011, through personal communications with a number of City staff members from different divisions who provided information about policies relating to mobile food vending. In addition, a review of by-laws relating to mobile vending was undertaken, including bylaws from the current City of Toronto and the pre-amalgamation boroughs of Etobicoke, York, East York, Scarborough, North York, and the Former City of Toronto. OBSERVATIONS FROM THE INFORMATION-GATHERING PROCESS Creating this report demonstrated that a seemingly simple idea such selling fruits and vegetables from a truck can be so thoroughly regulated as to seem impossible. Dozens of by-laws exist in Toronto that govern vending on public and private property in great detail. Fortunately, the City staff members who were consulted were able to provide balance to the restrictive minutia found in City by-laws by describing how regulations are, and could be, interpreted in practice. Speaking with City staff from various departments revealed that no single staff member or division had complete knowledge of the issue. Also, staff members often assumed that other City divisions had responsibilities or concerns relating to mobile vending, even 1

2 when this was not the case. The communications that informed this report, including preceding reports on the topic, revealed that City staff often anticipate complications from other City offices, which creates some scepticism regarding the viability of mobile produce vending. However, staff in each office were helpful in regards to imagining their own roles in relation to mobile produce vending, and offered potential solutions to perceived challenges. This suggests that facilitating clearer communication among City actors would improve the general perception of the issue. It also became clear that there is no exact regulatory framework in place that the City staff members can apply to the proposed mobile produce vending scenarios. In helping to establish the potential viability of selling produce from a vehicle, staff often had to consider the possibility of mobile vending scenarios by making close but imperfect regulatory comparisons. For instance, selling produce from a vehicle was at times considered in the context of operating ice cream trucks or setting up farmers markets, and mobile produce vending on apartment building properties was loosely compared to pizza delivery. The rules that would enable or restrict selling produce from trucks were, for the most part, create to regulate other actions. For instance, the Hawker Pedlar license, which would be required by a mobile produce vendor, was originally created for door-to-door salesmen. To complicate things further, many of the by-laws that exist to regulate mobile vending were created before amalgamation, meaning that even when there are city-wide policies, they often co-exist with more specific, and often more restrictive, by-laws for each of Toronto s former municipalities. As a result, the potential for mobile produce vending, particularly on public roadways, varies widely across Toronto s boroughs, and knowledge of the issue is fragmented across different City offices. This is the case for both roadway permit by-laws and for zoning by-laws, and the lack of centralized knowledge and clear policies could deter potential vendors from entering the mobile produce vending business. REUIREMENTS FOR ALL MOBILE PRODUCE VENDORS Business Licenses for Mobile Produce Vending: In Toronto, all mobile vendors need a license to sell anything on private or public property (Toronto Municipal Code 545-2(17)). However, there are exceptions to this rule. Mobile vendors do not require a license if the goods being sold are: Sold to wholesalers or retailers in similar goods (Toronto Municipal Code 545-2(17)(a)) Produced in Ontario and sold by the owner/employee/agent in the municipality where the grower/producer resides (Toronto Municipal Code 545-2(17)(b)) Goods sold by an Ontario farmer that were produced on his or her farm (Toronto Municipal Code 545-2(17)(c)) 2

3 Sold by owner/employee/agent of a business that pays business tax in the municipality (Toronto Municipal Code 545-2(17)(d)). If there was any doubt on behalf of Municipal Licensing and Standards (MLS), the employee or agent would need to show a letter of authorization from the business owner. If any doubt remained, MLS would visit the business and ask for proof of employment. If none of these exemptions apply to a vendor, a Hawker Pedlar with Motorized Vehicle license is required. The Hawker Pedlar license is recognized city-wide, and is intended for vendors who travel from place to place making short stops to sell goods. The Hawker Pedlar license is issued by MLS, and costs $1, for first the first year and $ for renewal. There are few official details of what is permitted under a Hawker Pedlar license, but MLS understands it to mean that the vendor (most commonly an ice cream truck) will continue to rove, and make stops of 20 minutes or less. There are some specific restrictions relating to Hawker Pedlars licenses found in Toronto Municipal Code Chapter 545, Section XVII, which include: Operating before sunrise Having an unlicensed employee Stopping within 30m of the entrance of a school, a public park, or wharf or dock The Hawker Pedlar license permits a vendor to sell on both public and private property, so long as there are no other regulations in place that restrict vending. Unfortunately, vending on public roads is restricted or prohibited under certain local by-laws, and vending on private property is often prohibited under zoning by-laws. These restrictions will be discussed further below. Competition with existing businesses: There was concern among many of the contacted City staff that introducing mobile produce vending could create competition for existing businesses, and that the Economic Development & Culture Division would have strict regulations regarding where vending could take place. However, Economic Development & Culture did not consider competition to be a problem because vendors would presumably seek out areas where there was not already a significant supply of fresh produce. Staff in this office were also unaware of any policies from his division requiring that vendors avoid proximity to existing businesses, although some area-specific vending by-laws discussed below do have such policies. SCENARIO 1: Vending on private property Selling fresh produce directly on properties where people live or visit frequently could improve access to healthy food in underserved areas. For this report, residential properties were the primary consideration, but this scenario could also include other 3

4 convenient locations in a community such as the parking lots of shopping malls, places of worship, or community centres. Licenses and permits: With the permission of property owners, selling produce on private property is allowed with either a valid business license or a Hawker Pedlar license. Vendors must take care not to block any fire routes on private property (Toronto Municipal Code ), or else a fine may be issued to the building manager. However, every property in the city is subject to zoning by-laws which limit the types of uses or activities that can take place. Zoning: Zoning by-laws present a significant barrier to selling produce on private property in Toronto, especially high-rise residential properties where mobile vending could be most beneficial. The main challenge for vendors will be the lack of blanket zoning approval for mobile retail within specific land use categories such as Commercial Residential. The current zoning structure requires vendors to check if each individual property is zoned to allow for retail uses, even if all of the properties are similarly categorized. Zoning is especially complicated because there are three layers that must be considered: 1. Official Plan zoning: Broad land-use policies for each area of the city 2. Zoning By-laws: Specific land use categories for each individual property in the city 3. Site-specific zoning: Property-specific by-laws regarding permitted uses This layered system of land use regulation creates challenges because retail may be permitted at one level, but restricted at another. At the Official Plan level, the Neighbourhood and Apartment Neighbourhood land use designations allow for smallscale retail. At the zoning by-law level, the Commercial Residential (CR) category is the most permissive of retail on properties with residences. Unfortunately, most properties that are designated Neighbourhood or Apartment Neighbourhood fall within the Residential or Residential Apartment category within the zoning by-law, which restricts outdoor retail. The mis-match between the two levels could result in the need of a zoning by-law amendment or a new zoning interpretation by zoning examiners, which can be too costly or time consuming for an entrepreneur to pursue. In cases where mobile retail is clearly allowed by both Official Plan zoning and the zoning by-law, individual properties may still have site-specific zoning policies that permit or restrict uses such as retail. 4

5 To complicate matters further, Toronto s Harmonized Zoning By-law was repealed in spring 2011, meaning that land use categories are no longer standardized or centralized in an on-line document. Until the Harmonized Zoning By-law is reinstated, zoning policies exist within over 40 by-laws across Toronto s districts. Rather than expecting vendors to conform to or attempt to amend the existing zoning regulations on a case by case basis, it was suggested that efforts should be made to change zoning regulations broadly, so that the different zoning layers align and are generally more permissive of retail activity. Enforcement: Municipal Licensing and Standards is primarily concerned with enforcement on public property, and is unlikely to enforce any vending on private property. If MLS was concerned about a vendor being in contravention of zoning by-laws, Building Standards would be informed. Zoning Examiners are also unlikely to enforce any land use regulations as they relate to mobile vending since there is nothing to trigger their involvement short of a specific complaint to their department, or proposed changes to the site in order to accommodate mobile vending (such as a specifically designated stopping area) which would be evaluated in a Site Plan Review process involving input from a number of City departments. SCENARIO 2: Vending on a right of way (ROW) The second scenario considered for this report is mobile produce vending on a right of way (public road). In this case the vendor would make multiple short stops throughout the day on roads in areas with limited access to fresh produce retail. This scenario does away with the need for zoning by-law compliance and the permission of landowners. Licenses and permits: The main issue for mobile vending on public roads is where vendors are permitted to stop their vehicles. Right of Way (ROW) Management is concerned about safety, damage to the roadway, and garbage, and prefers that vendors stop at locations that are on lowertraffic streets with lots of space for pedestrian traffic to get by, such as boulevards. However, although many City staff believed that ROW Management has a role in approving stop locations, staff in that office understand that to be the role of Municipal Licensing and Standards. ROW Management has no role in approving or enforcing mobile vending and is concerned only with applications for street closures and similar events. In regulating mobile vending, MLS consults Toronto Municipal Code Chapter 545 to determine the types of licences that can be issued, and Chapter 315 to determine the specific activities permitted by different types of vendors. In addition, MLS considers specific by-laws relating to vending in different Toronto boroughs, many of which were 5

6 created before amalgamation. These levels of regulation vary in specificity and permissiveness, and what is permitted at one level may subsequently be restricted in other by-laws. MLS views the Hawker Pedlar license described in Chapter 545 as the appropriate license for a mobile produce vendor, and they interpret that license to be broadly permissive of multiple short stops on public roadways, assuming that all traffic rules are obeyed. However, chapter 315 restricts vending on roads, sidewalks or boulevards unless the use is by a farmer or market gardener selling to a neighbouring business or residence, or unless vendors are selling from a Designated Area (Toronto Municipal Code 315-2). In fact, all public highways in the City are designated as removal zones, as well as any untraveled portions of Metropolitan roads in City boundaries. Vendors can only operate in these areas if they have a Designated Area permit (Toronto Municipal Code ). Designated Areas are listed in schedules B, F, and G of chapter 315, and vendors must apply for a permit to park a vehicle in a Designated Area or to vend from a portable display unit on a public road (Toronto Municipal Code A(1); A(2)). The permit application process is somewhat onerous, and requires vendors to: Pay a $200 application fee (Toronto Municipal Code B(1)) Submit drawings or photographs with dimensions of the food vending vehicle s waste receptacles, food storage areas and other equipment (Toronto Municipal Code C(4)(a)) Submit a certificate from the Medical Officer of Health proving compliance with Health Protection and Promotion Act (Toronto Municipal Code C(5) Submit a description of food that will be sold (Toronto Municipal Code C(7)) Provide a detailed description of the location requested to be a designated area (Toronto Municipal Code C(8)) Provide the intended hours of operation (Toronto Municipal Code C(9)) In addition, there are specific regulations concerning Designated Areas that limit their usefulness for potential mobile vendors. Most importantly, vendors cannot hold more than one location permit at a time (Toronto Municipal Code 315-7). Also, Designated Areas cannot be more than 10 metres in length by 3 metres in width (Toronto Municipal Code A(1)(a)), and there must be at least 3.66 metres of paved and passable space between the Designated area and the curb, any obstruction to pedestrian passage or change in grade on private property (Toronto Municipal Code A(3)). There are also strict limits as to where new Designated Areas can be located. Municipal Code A(2) restricts any portion of a designated area from: Being directly in front of building s exit or entrance 6

7 Blocking the name or number of a building or a display window Being less than 3.5 metres from a signalized intersection (for food vending vehicles) Being less than 25 metres from a business selling similar products Being directly in front of a building s standpipe Being closer to an intersection than the distance equal to the designated area (for portable display units) Being located less than 25 metres from another Designated Area Being less than 25 metres from the entrance or exit of a place of worship Additionally, if a vendor requests a new Designated Area, the proposed space cannot be in an Improvement Area unless the Board of Management provide written consent (Toronto Municipal Code A(5)) Costs of Designated Area permits: The operator of a food vending vehicle must pay $3, in advance each year (Toronto Municipal Code A(1)(b)), plus all costs incurred by the City for removing a parking meter from a designated area (Toronto Municipal Code A(1)(c)(1)) and an annual charge equal to the lost revenue from removing the parking meter (Toronto Municipal Code A(1)(c)(2)). In addition, a mobile food vendor must have a $500, liability insurance policy in order to receive a Designated Area permit (Toronto Municipal Code ). Time restrictions: Even with a permit, food vending vehicles cannot be stopped on a road between two intersections for more than 3 hours of any day or more than 1 hour within the 3 hour period at any 1 location (Toronto Municipal Code C(1)). This would not pose a problem if a mobile vendor was able to rove freely with a Hawker Pedlar license, but if a vendor was confined to one Designated Area this would severely limit a vendor s ability to sell enough produce to earn a profit. Metropolitan roads: Before amalgamation, Metropolitan roads were governed differently than City roads, and vendors could receive separate permission to vend on Metropolitan roads from the Metropolitan Commissioner of Transportation (Toronto Municipal Code ). This parallel process remains in the Municipal Code, but it is unclear if there is still a separate application process in practice. 7

8 Enforcement: There is a maximum $5,000 fine for vending without appropriate permits (Toronto Municipal Code ). Right of way vending by-laws in specific Toronto boroughs: As mentioned above, there are area-specific by-laws that are overlaid on Toronto-wide policies relating to mobile vending. These by-laws were often created before Toronto s amalgamation, and are generally very restrictive. East York: The Borough of East York has declared all Borough Roads as Removal Zones where food vending vehicles cannot stop, park, place, store, or stand, except with a specific permit for a Designated Area, which must be listed in Schedule B of the by-law (East York By-law ). Curiously, Schedule B is a handwritten list that includes only 3 addresses in East York: 825 Coxwell, 154 Wicksteed, and 5 Bermondsey. Regardless, permit applicants have to: Specify the location Pay $200 application fee plus $2,600 for the permit (East York By-law Schedule A ) Only hold one location permit (East York By-law (b)) Provide a certificate of insurance in the amount of $1,000, (East York Bylaw (d)(iii)) Furthermore, Designated Areas must: Be no more than 10 metres by 3 metres (East York By-law (i)) Not be in front of an entrance to a building (East York By-law (ii)(a)) Not block a building s number from view (East York By-law (ii)(b)) Not be less than 25 metres from a store selling similar goods (East York By-law (ii)(d)) Not be within 25 metres of an existing Designated Area (East York By-law (ii)(h)) Not be within an Improvement Area unless Board of Management consents (East York By-law (v)) 8

9 Areas between 2 intersections cannot be occupied for more than 3 hours per day, in periods of 1 hour or less (East York By-law (c)(i)). Etobicoke: Etobicoke Code prohibits selling anything from a street, sidewalk, untraveled portion of a road, a park, or any other public place. However, owners or tenants of commercial or industrial properties can apply to use the sidewalks or untraveled portions of roads abutting their property for periods of up to a week, but only twice per year (Etobicoke Code ). Former City of Toronto: [Found in Municipal Code Chapter 315, discussed above] North York: All North York roads are designated as Removal Zones and no vending is permitted on streets, sidewalks, boulevards, or highways in Removal Zones (North York By-law ). However, vendors can apply for location-specific permits to vend from sidewalks and boulevards from a portable display unit. The application fee is $250 and the annual fee is $2,000. Vendors must be 25 metres from existing businesses selling similar products (North York By-law 32100). Vendors who contravene the Bylaw are subject to having their display unit seized and to having to pay a maximum fine of $5,000 per offence (North York By-law and 4). Scarborough: Under City of Scarborough By-law (4), retail sale on a highway (interpreted as any roadway), or vacant lot abutting a highway is prohibited. York: Selling of ice cream and confections from vehicles on Borough of York roads is prohibited, with exceptions made for farmers and market gardeners and their employees and agents. Offenders are charged a $300 fine (York By-law ). CONCLUSION: At the outset, the purpose of this report was to clarify the regulations relating to mobile vending in order to establish a viable and legal way forward for would-be vendors. It was assumed that either the private property or public property vending scenario would emerge as a preferable option with fewer regulatory hurdles. In fact, the current regulations governing mobile vending are so layered, fragmented, and detailed in Toronto that a rule-abiding vendor would not likely be able to reach a wide enough market to earn a profit. 9

10 The way forward for mobile vending, therefore, is to work to adapt Toronto s regulatory system to facilitate mobile vending, rather than to hope that produce vendors can adapt to a regulatory scheme that developed without their needs in mind. This viewpoint was shared by many of the City staff that were consulted, some of whom suggested that City staff are better suited to advocate for more permissive zoning rules than individual vendors and that a pilot project operated in collaboration with the City would allow MLS more flexibility in its interpretation of by-laws and enforcement policies. Therefore, Toronto Public Health could take the following actions to facilitate mobile produce vending in Toronto: Immediate action: Meet with community members to establish where mobile produce vending could have the greatest impact, and identify potential vendors. Short-term action: Create a pilot project with relevant City divisions to test the viability of mobile produce vending on public roadways. The outcomes of the pilot project could inform longer-term adjustments to City regulations. Longer-term action: Advocate for more permissive zoning interpretations and land use categorizations in areas that are underserved by fresh food retail outlets. This could require research to outline the zoning restrictions in high-rise apartment neighbourhoods and other socially vulnerable areas of the city. It is especially important to advocate for permissive retail uses across specific land use categories, so that mobile produce vendors will not have to individually navigate property-specific zoning restrictions. Remaining Questions: Certain aspects of mobile vending remain unclear, particularly how the relationship between the Hawker Pedlar license and other more restrictive by-laws is interpreted by MLS employees across the city. Some specific questions that remain are: 1. Does the Municipal Act cover more than just the Former City of Toronto and East York? 2. If every single former municipality has restrictive by-laws relating to vending on streets, what does the Hawker Pedlar license actually enable vendors to do? 3. Is there still in fact a distinction between City roads and Metropolitan roads for licensing and permitting? 4. How is the City able to collect the different fees laid out in the various municipal by-laws now that the City budget is harmonized? 10