County shouldn’t confiscate food from suspected illegal vendors,
lawyer says
Calling San Benito County’s policy regarding street vendors
”
very vague,
”
Supervisor Robert Rivas this week questioned the legality of
confiscating food from those suspected of peddling their wares
without a permit.
”
I need to be reassured that what we’re doing is right and that
we are following all laws,
”
Rivas said at Tuesday’s board meeting.
”
If not, how as a board do we address it and move forward?
”
County shouldn’t confiscate food from suspected illegal vendors, lawyer says
Calling San Benito County’s policy regarding street vendors “very vague,” Supervisor Robert Rivas this week questioned the legality of confiscating food from those suspected of peddling their wares without a permit.
“I need to be reassured that what we’re doing is right and that we are following all laws,” Rivas said at Tuesday’s board meeting. “If not, how as a board do we address it and move forward?”
The county’s Environmental Health Services agency recently began an informational campaign designed to bring un-permitted roadside vendors into compliance with health rules and business license regulations. Officials are concerned that food from unknown origins has the potential to make people sick as unregulated vendors often do not follow food safety practices.
Rivas said he received a report of “an instance where food was confiscated” from a street vendor, which prompted him to question the procedures used to enforce the policy.
County Counsel Matthew Granger called the issue “decidedly complex,” as the possibility of confiscating items from unlicensed vendors raises due process and constitutional questions.
Vendors suspected of operating without a business license or health permit are “entitled to a hearing and due process” if the items they are peddling are confiscated by health or law enforcement officials, he noted.
“The county can’t impound food and have it spoil or throw it away” before such a hearing, Granger noted. “You have to promote a meaningful remedy.”
However, with no hearing officer available to hear the cases or storage facility in place to store confiscated food, “there is no ability to conduct the due process required under law.”
Granger recommended that the county not confiscate food from suspected unlicensed vendors and instead issue citations and order the vendor to stop selling until or unless they get the proper permits.
Supervisor Margie Barrios agreed that the environmental health department can close down un-permitted vendors, though “we need to have the ability to follow due process all the way.”
Environmental Health Services Manager Vivian Nelson acknowledged that her department “does not have the resources to do the program as effectively” as supervisors want and suggested that “perhaps the sheriff would want to take on that role” of citing unlicensed vendors. Granger, however, said that identifying and citing illegal food vendors “is not a priority for the sheriff’s department or the city of Hollister.”
Nelson said it is her department’s role “to ensure food is safely delivered and prepared. The bottom line is the protection of the public. That is our only concern.”
She detailed how many street vendors, typically selling seasonal fruits and vegetables on street corners, prop their wares up against the same trees that “dogs use as a latrine.” She said the vendors don’t have hand-washing stations, lack training in safe food handling practices and don’t note the origin of the produce they are selling.
The recent tainted food scare in Europe is an example of how difficult it can be to trace the origin of food, she noted.
Barrios said that the county’s plan of educational outreach is a good place to start, particularly because there is not a storage facility available to hold any confiscated food.
Rivas recommended that the issue be brought back before an intergovernmental board to hash out the policy and enforcement procedures.
Supervisor Jaime De La Cruz told Nelson that while he supports the effort to bring vendors into compliance, he would not support any budget increases for the program.
“You have a budget; work within your budget,” he said.
While Supervisor Anthony Botelho agreed that a citation program “will probably be the most effective,” he said he found it ironic that a county health inspector was present at the annual fiesta at Mission San Juan Bautista last weekend, checking on “people operating legally.”
Nelson said that as part of her department’s informational campaign, the Sunnyslope Water District will put 5,300 copies of a news release on the program in its July billing statements.
