HomeMy WebLinkAbout2020-05DocuSign Envelope ID: 7690FC73-FBC0-4488-8A5C-ECD81 DD8C8AB
ORDINANCE NO. 2020-05
AN URGENCY ORDINANCE OF THE TOWN OF DANVILLE ESTABLISHING A
TEMPORARY CAP ON COMMISSION, FEES AND COSTS CHARGED BY THIRD -
PARTY FOOD DELIVERY SERVICES ON LOCAL RESTAURANTS WITHIN THE
TOWN OF DANVILLE DURING THE COVID-19 PANDEMIC
The Danville Town Council does ordain as follows:
SECTION 1. FINDINGS.
In enacting this ordinance, the Town Council makes the following findings:
WHEREAS, international, national, state, and local health and governmental authorities
are responding to an outbreak of respiratory disease caused by a novel coronavirus
named "SARS-CoV-2," and the disease it causes has been named "coronavirus disease
2019," abbreviated COVID-19, ("COVID-19"); and
WHEREAS, on January 30, 2020, the World Health Organization ("WHO") declared
COVID-19 a Public Health Emergency of International Concern, and subsequently, on
March 11, 2020, characterized it as a pandemic; and
WHEREAS, on March 4, 2020, California Governor Gavin Newsom declared a State of
Emergency in response to the spread of COVID-19 throughout the state; and
WHEREAS, on March 13, 2020, the President of the United States of America declared a
national emergency in response to the spread of COVID-19; and
WHEREAS, on March 17, 2020, the Danville Town Council adopted Resolution No. 21-
2000 declaring the existence of a local emergency within the Town due to COVID-19; and
WHEREAS, in the intervening months, the Contra Costa County Public Health Official
and the State of California Public Health Officer have adopted, and amended, a number
of binding health orders aimed at slowing the spread of COVID-19; and
WHEREAS, in addition to shelter in place requirements for residents, these orders have
imposed various limits on the ability of restaurants to serve customers in person, ranging
from a complete prohibition on seating customers to prohibiting indoor service to
allowing some limited amount of indoor service; and
WHEREAS, restaurants are a vital part of the Town's economy and the continuity of
operations among the Town's restaurants, most of which are small businesses struggling
to stay in business during this pandemic, is critical for the delivery of essential food
DocuSign Envelope ID: 7690FC73-FBC0-4488-8A5C-ECD81DD8C8AB
services to residents and to sustain these sources of employment and neighborhood
vitality within the Town; and
WHEREAS, in an effort to assist restaurants within Danville, the Town has taken a
number of steps, including, but not limited to: approving land use permits to expand
outdoor seating; allowing parklets and seating in the public right-of-way; authorizing
street closures to increase outdoor seating; and, awarding grants of up to $5,000 to eligible
restaurants to offset the additional costs of remaining open outdoors during the winter
months; and
WHEREAS, many consumers use third -party applications and websites to place orders
with restaurants for delivery and takeout, and these third -party platforms charge
restaurants fees; service agreements between some restaurants and third -party platforms
provide that the platform charges the restaurant up to thirty percent (30%) of the
purchase price per order; and
WHEREAS, restaurants, particularly those that are small businesses, have limited
bargaining power to negotiate lower fees with third -party platforms given the market
saturation of third -party platforms and they do not have the ability to provide their own
delivery services; and
WHEREAS, based on input received by the Town, many restaurants within the Town
have been relying on delivery and take out to generate sufficient revenue to stay open
and operate in a safe manner consistent with the county and state health orders; and
WHEREAS, capping delivery service per -order fees at 15% and non-delivery services at
10% per order, will achieve the public purpose of ensuring the continued operation of
local restaurants and third -party platforms during the period of emergency; the 15% cap
and 10 cap on fees charged to restaurants is based on the findings and experience of
other California cities and cities nationwide that have already adopted 15% fee ceilings
or similar caps as reasonable emergency regulations in collaboration with food delivery
companies; and
WHEREAS, the California Constitution, Article XI, Section 7, provides cities and counties
with the authority to enact ordinances to protect the health, safety, and general welfare,
of their citizens; and
WHEREAS, California Government Code Section 36937 authorizes the Town Council to
introduce and adopt an ordinance it declares to be necessary as an emergency measure
to preserve the public peace, health, and safety at one and the same meeting if passed by
at least four-fifths affirmative votes;
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WHEREAS, this Ordinance is temporary in nature and only intended to promote stability
and safe and healthy operations within the Town's restaurants during the COVID-19
pandemic outbreak, and to prevent avoidable business closures thereby serving the
public peace, health, safety, and public welfare by ensuring jobs and economic vitality
within the Town, while also preventing further spread of the virus; and
WHEREAS, it is necessary to take this action through an urgency ordinance to avoid the
continuing and immediate threat to public peace, health, and safety due to the current
restrictions on restaurants and the onset of winter weather which will limit outdoor
seating even when reinstated. Continued operation of restaurants in the community
provides food to residents in a safe manner, continues employment and ensures the
continued vitality of the community; and
WHEREAS, adoption of this Ordinance is exempt from the California Environmental
Quality Act under Section 15061(b) (3) of the CEQA Guidelines. This is an emergency
response measure aimed at capping delivery services fees on existing restaurants. No
new development will result from the proposed action and impact to the physical
environment will result; and
WHEREAS, the Danville Town Council finds that the recitals above are true and correct
and that they form the basis for adoption of this Ordinance.
SECTION 2. FOOD SERVICE DELIVERY AND NON-DELIVERY COMMISSIONS
CAP ESTABLISHED.
A. Commissions Cap and Prohibitions. During the period of declared local emergency
pursuant to Town Council Resolution No. 21-2000, as may be amended from time to time,
and for one hundred and eighty (180) days thereafter, it shall be unlawful for any third -
party food delivery service to do any of the following:
1. Charge a Covered Establishment located within the Town of Danville:
a. A fee, commission, or cost of more than fifteen percent (15%) of the
purchase price per online order for delivery services; and
b. A fee, commission or cost of more than ten percent (10%) of the purchase
price per online order for non-delivery services.
c. As used in this section, fee, commission or cost includes all fees charged
to Covered Establishments, including, but not limited to, listing, delivery, and marketing
services, as defined herein. However, this section does not prohibit a Covered
Establishment from electing to pay for optional upgrades for existing marketing services
where such upgrades may be offered by third -party food delivery services.
2. Limit or impede in any manner the ability for a Covered Establishment, or
similar food facility to otherwise determine the purchase price for food or beverage items
listed in their respective menus.
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B. Tips and Gratuities; no reduction of compensation.
1. A third -party food delivery service shall offer customers the option to, as a part
of an online order for delivery or non-delivery service, authorize a tip or gratuity to be
paid to food delivery service workers and any Covered Establishment from which the
customer places an order through the third -party food delivery service.
2. It shall be unlawful for a third -party food delivery service to reduce the
compensation, including any tip or gratuity, paid to any food delivery service worker, or
to reduce any tip or gratuity authorized by a customer to be paid to any Covered
Establishment as a result of the prohibitions stated in this ordinance.
C. Enforcement.
1. A Covered Establishment, or food delivery service worker claiming a violation
of this ordinance shall first provide written notice to the third -party food delivery service
of the specific section of this ordinance which is alleged to have been violated and the
facts to support the alleged violation. The third -party food delivery service shall have
seven (7) business days from the date of receipt of the written notice to cure any alleged
violation including but not limited to providing a refund of any charges exceeding the
caps imposed herein.
2. If, after written notice is provided pursuant to subsection (C)(1) above and the
third -party food delivery service fails to cure the alleged violation, including failing to
provide a refund or continuing to charge fees in violation of this ordinance, the person or
entity claiming a violation of this ordinance may bring a civil action seeking damages and
injunctive relief. The prevailing party in any such action shall be entitled to an award of
reasonable attorney's fees.
3. This ordinance is not intended to, and does not, create any rights or benefits,
substantive or procedural, enforceable at law or in equity, against the Town of Danville,
its officers, or employees.
D. Definitions. For the purposes of this ordinance, the following definitions shall apply:
1. "Covered Establishment" means a restaurant, eating or drinking establishment,
or similar food facility that offers, in a single commercial transaction over the internet,
whether directly or through a third -party food delivery service, the sale and same-day
delivery of food to customers from one or more locations within the Town of Danville.
2. "Customer" means any person, firm, or association who makes use of a third -
party food delivery service for the purpose of obtaining food or beverage items from a
Covered Establishment located within the Town.
3. "Listing services" means services offered by a third -party food delivery service
to list the information and/or menu of a Covered Establishment located within the Town
and processing online orders.
4. "Marketing services" means services offered by a third -party food delivery
service to a Covered Establishment located within the Town for the purposes of
promoting, advertising, or otherwise strengthening the business or performance of the
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Covered Establishment on the mobile application, website or other internet services of
the third -party food delivery service.
5. "Online order" means an order for a consumer food item placed through an
application or platform provided by a third -party food delivery service for delivery or
pickup within the Town.
6. "Purchase price" means the menu price of an online order, excluding taxes,
gratuities, and any other fees which may contribute to the total cost to the customer of an
online order.
7. "Third -party food delivery service" means any individual, firm, association,
corporation or entity through website, mobile application or other internet service that
offers or arranges for the sale of consumer food or beverage items for same-day delivery
or same-day pickup from a Covered Establishment located within the Town of Danville.
SECTION 3. SEVERABILITY. If any provision of this Ordinance or the application
thereof to any person or circumstance is held invalid, the remainder of the Ordinance,
including the application of such part or provision to other persons or circumstances,
shall not be affected thereby, and shall continue in full force and effect. To this end,
provisions of this Ordinance are severable. The Town Council hereby declares that it
would have passed each section, subsection, subdivision, paragraph, sentence, clause or
phrase hereof, irrespective of the fact that any one or more sections, subsections,
subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid,
or unenforceable.
SECTION 4. EFFECTIVE DATE AND TERM. This Urgency Ordinance shall become
effective seven days after its adoption pursuant to California Government Code Section
36937. This Urgency Ordinance shall expire one hundred and eighty (180) days from the
date that the Danville Town Council terminates the local emergency proclaimed pursuant
to Resolution No. 21-2000 as may be amended from time to time, related to COVID19.
SECTION 5. PUBLICATION. Pursuant to the provisions of Government Code Section
36933, a summary of this Ordinance shall be prepared by the City Attorney. Within fifteen
(15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the
summary, and (2) post in the City Clerk's Office a certified copy of the full text of this
Ordinance along with the names of those City Council members voting for and against
this Ordinance or otherwise voting.
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The foregoing Ordinance was adopted by the Danville Town Council at a special meeting
held on December 18, 2020, by the following vote:
AYES: Arnerich, Fong, Morgan, Stepper, Storer
NOES: None
ABSTAINED: None
ABSENT: None
APPROVEpe AO FORM:
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DocuSigned by:
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MAYOR
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CITY ATTORNEY CITY CLERK
CLERK'S CERTIFICATE
I, Marie Sunseri, City Clerk of the Town of Danville, hereby certify that the foregoing is
a true and accurate copy of Ordinance No. 2020-05 of said Town and that said ordinance
was published according to law.
12/21/2020
Dated:
L7,7 Docus-
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3 'iF0 C9 2F
City Clerk of the
Town of Danville
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