Public Market Bylaw

Whereas:

The City is a single-tier municipality incorporated pursuant to an order made under section 25.2 of the Municipal Act, 2001;

Subsection 5 (1) of the Municipal Act, 2001 provides that the powers of a municipality must be exercised by its council;

Subsection 5 (3) of the Municipal Act, 2001 provides that a municipal power must be exercised by bylaw unless the municipality is specifically authorized to do otherwise;

Pursuant to subsection 10 (1) of the Municipal Act, 2001, a single tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public; and

Pursuant to section 113 of the Municipal Act, 2001, a local municipality may establish, maintain and operate a farmers market, a flea market and other similar types of markets, and may regulate a farmers market, a flea market and other similar types of markets of any person including regulating the hours of operation of a market.

Therefore, Council

1.1 This bylaw may be cited as the Public Market Bylaw.

1.2 In this bylaw:

Administrative Policies Committee means the Administrative Policies Committee designated by Council or, in the event of organizational changes, another committee designated by Council to carry out the committee’s responsibilities for appeals under this bylaw;

City means The Corporation of the City of Kingston;

Council means the Council of the City;

Craft means an item of decorative design and handicraft, or an item by hand and consisting of a one-of-a-kind or studio production work, and generally includes those items made with some degree of artistic purpose, but excludes mass-manufactured items;

Daily permit means a permit issued by the City to a stall holder pursuant to this bylaw governing the stall holder’s use and occupation of a stall for one day;

Jury means the market jury established by the manager pursuant to Schedule D of this bylaw;

Licence agreement means the licence agreement entered into by the City and the stall holder pursuant to this bylaw governing the stall holder’s use and occupation of a stall;

Manager means the Manager of Recreation & Leisure Services for the City, the manager’s delegate, or, in the event of organizational changes, the manager of the appropriately titled department;

Market means the City of Kingston public market located at Springer Market Square, as approximately shown on Schedule A;

Market clerk means the person designated by the manager to manage the market;

Market season means from January 1 to December 31 in each year;

Municipal Act, 2001 means the Municipal Act, 2001, S.O. 2001, c.25;

Person includes an individual, a corporation, a partnership, and an association;

Producer means a stall holder who produces a minimum of 80% of their product;

Provincial Offences Act means the Provincial Offences Act, R.S.O. 1990, c. P.33;

Re-seller means a stall holder who produces less than 80% of their product and/or buys their product either locally or from wholesalers;

Stall means that portion of the market licensed by the City to a stall holder pursuant to a daily permit or licence agreement, as the case may be; and

Stall holder(s) means a person who has entered into a licence agreement with the City for the use and occupation of a stall, or who has received a daily permit from the City for the use and occupation of a stall.

1.3 For the purposes of interpreting this bylaw:

1. a reference to any legislation, regulation, or bylaw or to a provision thereof includes a reference to any legislation, regulation or bylaw enacted, made or passed in substitution thereof or amendment thereof;
2. any reference to legislation or bylaws includes all of the regulations made thereunder; and
3. "include", "includes" and "including" indicate that the subsequent list is not exhaustive.

1.4 This bylaw will not be interpreted as exempting any person from the requirement to comply with any other City bylaw or federal or provincial legislation. In the event of conflict between the provisions of this bylaw and any other City bylaw, the more restrictive provision will apply.

2.1 The manager is responsible for the administration of this bylaw.

2.2 Where this bylaw provides that the manager may do an act, the manager may, when doing the act, seek and consider information or documents from any person, and may consult with other City employees, legal counsel, or other advisors, all as the manager considers necessary.

2.3 Where this bylaw provides that the manager may do an act, it may be done by an individual authorized by the manager to do the act.

2.4 Every application for a new licence agreement, or a renewal of an existing licence agreement, must be submitted to the manager in the form provided.

2.5 Every application for a new licence agreement, or a renewal of an existing licence agreement, must be accompanied by the full licence fee, as set out in City of Kingston Bylaw Number 2005-10, "A Bylaw to Establish Fees and Charges to be Collected by The Corporation of the City of Kingston", together with the jurying fee referred to in Schedule D, if applicable.

2.6 Despite subsection 2.5 of this bylaw, a producer may request a 50% fee reduction in exchange for a bi-weekly donation to a local food program or organization that supports the most vulnerable populations in the community, subject to and in accordance with the terms of the licence agreement.

2.7 The manager will review each complete application and will grant or refuse to issue a licence agreement or daily permit, as the case may be, and will notify the applicant of its decision in writing.

2.8 All applications for a craft stall or the sale of crafts must include a detailed description of the crafts to be offered, as well as information on how the crafts are produced. All such applications are subject to the jury process described in Schedule D.

2.9 A person whose application for a licence agreement or a renewal of a licence agreement has been refused, or a person whose licence agreement has been terminated may, within 15 days of being notified of the City’s decision, submit an application to appeal to the Administrative Policies Committee for a review of the decision. A person whose application for a daily permit has been refused has no right of appeal and the decision of the manager is final.

2.10 On appeal, the Administrative Policies Committee has the power to affirm the decision of the manager to refuse or terminate the licence agreement, or to direct the manager to issue, renew or reinstate the licence agreement.

2.11 Decisions of the Administrative Policies Committee are final.

3.1 This bylaw applies to the use of the market. Non-market civic events held in Springer Market Square will be regulated by the City of Kingston First Capital Place Policy, the City of Kingston Special Events Policy for City Parks and Facilities, and all other applicable City policies.

3.2 No person will sell, offer for sale, display, distribute or hand out any item in, on or at the market without a valid licence agreement or a daily permit issued under the provisions of this bylaw.

3.3 No person will knowingly submit an application for a licence agreement or daily permit that contains false, misleading or deceptive information.

3.4 No stall holder or employee of a stall holder will discriminate in the carrying on of business against any member of the public on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

3.5 No stall holder may sell, offer for sale, display, distribute or give any live animal, including any live bird, live fish, or live reptile, at the market.

4.1 Each stall holder is required to execute a licence agreement or to obtain a daily permit prior to accessing or using the stall. Each licence agreement and daily permit will contain the terms and conditions specified in this bylaw, including the general provisions set out in Schedule C of this bylaw, subject to any modifications or additional provisions which may be made to those general provisions as reasonably required by the manager and approved by the City’s Director of Legal Services.

4.2 No stall holder will transfer or assign their licence agreement or daily permit or sublicence or allow any other person to occupy the stall without the prior written consent of the manager.

4.3 Every stall holder must comply with all applicable federal, provincial, and municipal laws and regulations governing the use and occupation of the stall and the operation of the stall holder’s business at the stall.

4.4 A stall holder may request a temporary suspension of its obligations under the licence agreement, subject to and in accordance with Schedule E of this bylaw.

4.5 All stall holders must display their stall card in a prominent place in their stall at all times.

5.1 Stalls will be allocated to stall holders based on seniority and compliance with the attendance requirements set out in subsection 5.3 below, except between November 1 and March 31 inclusive, when stalls will be offered by availability and seniority. Seniority will be determined by the number of consecutive years that the stall holder has maintained a stall at the market.

5.2 In allocating stalls to new stall holders, preference will be given to producers who live within a 100-kilometre radius of the geographic boundaries of the City of Kingston.

5.3 In order to be eligible for renewal of a licence agreement, a stall holder must achieve 80% attendance at the market, during the days and at the times specified in Schedule B, in the stall holder’s best three months of the previous market season, subject to subsection 5.4 below. For clarity, in calculating the 80% attendance threshold, inclement weather days, as determined by the manager, will be excluded.

5.4 Despite subsection 5.3, a producer is only required to maintain a minimum attendance of one day per week during the producer’s best three months of the previous market season in order to be eligible for renewal of a licence agreement.

6.1 Any licence agreement or daily permit may be cancelled by the manager at any time for breach of any provision of the licence agreement, daily permit, or this bylaw.

6.2 The City may, without notice, require the closure and/or vacation of the market at any time due to a real or perceived emergency. For purposes of this subsection 6.2, an emergency includes any public emergency, such as a pandemic and/or epidemic as deemed to be such by the City in its sole discretion.

6.3 If the market is required by the City for a special event, including a program, filming activity or civic event approved by the City, the manager may, upon at least four weeks’ notice to the stall holders, require the closure, vacation and/or postponement of the market on the days and at the times specified in the notice. Such notice will include any scheduled rain dates for the special event. In addition to the notice period, the following terms and conditions will be applicable in the case of a cancellation or postponement:

1. in the case of postponement, the market day will be rescheduled to the next available Friday, where reasonably possible;
2. the City must display signage at the market announcing the cancellation/postponement for a period of at least one week prior to the cancellation/postponement;
3. the City and Tourism Kingston must announce the cancellation/postponement on their websites and through social media channels.

6.4 Rain checks will only be offered to daily permit holders who have paid the daily fee, and who are required to vacate the market prior to 11:00 a.m. due to inclement weather. Rain checks will not be offered to licence agreement holders.

7.1 The composition and duties of the jury with respect to the sale of crafts at the market are set out in Schedule D of this bylaw.

8.1 The following schedules are attached to and form part of this bylaw:

• Schedule A – Market Layout
• Schedule B – Market Days and Hours
• Schedule C – General Provisions for Stall Holders
• Schedule D – Composition and Duties of the Jury
• Schedule E – Requests for Temporary Absences

9.1 The manager, the market clerk, and any authorized agent or employee of the City, has the right, at any time and from time to time, to inspect the stalls, and all property, equipment, products and fixtures in the stalls, to determine whether the requirements of this bylaw are being complied with, and no person will obstruct, hinder or otherwise interfere with such an inspection.

10.1 Every person is guilty of an offence as provided for in the Provincial Offences Act if the person:

1. contravenes any provision of this bylaw;
2. hinders, obstructs or interferes with the manager in the exercise of the manager’s powers and duties; or
3. hinders, obstructs or interferes with a person authorized by the manager to do an act in the exercise of that person’s authority to do the act.

10.2 Every officer or director of a corporation who knowingly concurs in the contravention of any provision of this bylaw is guilty of an offence as provided for in the Provincial Offences Act.

10.3 Every person who is convicted of an offence under this bylaw is liable to a minimum fine of $500 and to a maximum fine of $100,000 pursuant to subsections 429 (1) and (3) of the Municipal Act, 2001.

10.4 A person who is convicted of an offence under this bylaw is liable, for each day or part of a day that the offence continues, to a minimum fine of $500 and a maximum fine of $10,000, and the total of all daily fines for the offence is not limited to $100,000 as provided for in section 429 of the Municipal Act, 2001.

10.5 When a person has been convicted of an offence under this bylaw, the Ontario Court of Justice or any court of competent jurisdiction may, in addition to any other penalty imposed on the person convicted, make an order:

1. prohibiting the continuation or repetition of the offence by the person convicted; and
2. requiring the person convicted to correct the contravention in the manner and within the period that the court considers appropriate.

10.6 The City may collect unpaid fines for a contravention of this bylaw in accordance with the following:

1. the City treasurer may give notice that if any part of a fine for a contravention of this bylaw remains unpaid after the fine becomes due and payable under section 66 of the Provincial Offences Act, including any extension of time for payment under section 66 or 66.0.1 of the Provincial Offences Act, the treasurer may give the person against whom the fine was imposed a written notice specifying the amount of the fine payable and the final date one which it is payable, which must be not less than 21 days after the date of the notice;
2. if the fine remains unpaid after the final date specified in the notice, the fine is deemed to be unpaid taxes for the purposes of section 351 of the Municipal Act, 2001.

11.1 If a court of competent jurisdiction declares any provision, or any part of a provision, of this bylaw to be invalid, or to be of no force and effect, it is the intention of Council in enacting this bylaw that each and every provision of this bylaw authorized by law be applied and enforced in accordance with its terms to the extent possible according to law.

11.2 This bylaw will come into force and take effect on the date it is passed.