Sidewalk vending enforcement clouded by continuing uncertainty over First Amendment protections
Ocean Beach Town Council also hears updates on San Diego legislation on vehicle habitation, short-term rentals and homeless encampments.
A virtual freeze on enforcement of the city of San Diego’s sidewalk vending ordinance regarding vendors who assert free-speech rights under the First Amendment is alarming some Ocean Beach residents who had long coveted the regulations as a way to curb crowds of sellers at the shore.
Police and other city representatives reviewed the enforcement status of regulations on sidewalk vending, vehicle habitation and short-term rentals during the Ocean Beach Town Council’s April meeting, as well as a proposed ordinance concerning homeless encampments in public spaces.
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The vending ordinance, which the City Council passed last year, took effect in most of the city June 22. It includes rules for permits and health and safety, but its restrictions focusing largely on where vendors can operate could not be enforced in coastal communities, including Ocean Beach, while awaiting review by the California Coastal Commission. The commission agreed in August to withdraw its review and allow enforcement in the coastal zone. That enforcement began Feb. 1.
Among other things, the ordinance intends to block vending year-round at Sunset Cliffs Natural Park; within 25 feet of any beach access point or pier; within 25 feet of any decorative fountain, statue, monument, memorial or art installation; and on main thoroughfares in some business districts, including Newport Avenue between Abbott Street and Sunset Cliffs Boulevard in Ocean Beach during the busy summer months between Memorial Day and Labor Day. Vendors are allowed to continue operating on the cross streets and side streets in those areas.
In many city shoreline parks, including in Ocean Beach, the ordinance calls for banning vendors during the summer.
However, the ordinance exempts those “engaged solely in artistic performances, free speech, political or petitioning activities, or engaged solely in vending of items constituting expressive activity protected by the First Amendment, such as newspapers, leaflets, pamphlets, bumper stickers or buttons.”
Also, city officials have said commercial activities that seek donations instead of a set charge are not considered vending.
“It just takes a challenge and then all of a sudden, it’s a stop [on enforcement] because we have to see how the courts decide this issue,” according to San Diego police Community Relations Officer Michael Hayes.
Enforcement of the vending ordinance falls primarily on city park rangers in the coastal zone, with police in a supporting role if needed.
When the law took full effect in the coastal zone, it initially seemed to keep vendors away from areas such as Ocean Beach’s Veterans Plaza, which previously was packed with vendors selling jewelry, clothing, art, decor and more.
Now, however, some vendors are exploiting the free-speech exemption, according to Denny Knox, executive director of the Ocean Beach MainStreet Association.
Her exchanges with leaders of beach communities in the Coastal Coalition — which includes Ocean Beach, Mission Beach, Pacific Beach and La Jolla — say word of the loophole quickly circulated in the vendor community, and “they are all seeing this sort of vendor creep come back into the scene,” Knox said.
In La Jolla, for example, residents and leaders have complained to the city about vendors operating under the First Amendment exception at Scripps Park and the La Jolla Shores boardwalk.
La Jolla group seeks high-level input from S.D. on how to curb ‘so-called First Amendment’ sidewalk vendors
Parks & Beaches members say sellers operating under a free-speech exception to San Diego’s ordinance are creating a ‘resurgence’ in vending at shoreline areas.
“That has been written up and then passed back for review by legal and attorneys on the city’s side and they say this is a gray area,” Hayes said. “When these things go into a gray area, the general trend is to really vet the process ... so that we don’t overstep our bounds and then lose something.”
City spokesman Benny Cartwright told the La Jolla Light that “there is currently little guidance in the municipal code of what is and what is not considered vending protected by the First Amendment.”
The San Diego Parks & Recreation Department is “actively working to review the current municipal code in order to help clarify solicitation, performances and merchandise sales that are protected by the First Amendment on public property,” Cartwright said. “We are also in the process of conducting interviews for ... remaining park ranger vacancies throughout the department.”
Eight of those positions will focus on vendors at the beaches, “bay and the rest of the city’s park system,” he said.
Sidewalk vendors aren’t the first group to make First Amendment claims against city enforcement, said Kohta Zaiser, Mayor Todd Gloria’s representative in City Council District 2, which includes Ocean Beach and Point Loma.
Claimants have been found at many special events and even among bonfire vendors creating an “experience,” thus requiring a broader fix than just the vending ordinance, Zaiser said.
“We’re not looking to amend the street vending ordinance,” he said. “We’re looking to touch the larger ordinance of the city that covers the First Amendment across the board, which will then affect street vending. ... That way it’s clear what is allowed and what is not, what is obviously First Amendment vs. what is just working around the system. That’s the larger piece.”
Because of the First Amendment’s primacy in the legal structure, the community might have to designate spaces along the shoreline for legitimate pursuits, Zaiser said, naming Dog Beach and Saratoga Park as potential sites.
“I don’t want to impose on the community, though,” Zaiser said. “So I need buy-in from you guys. If Veterans Plaza is what we want to preserve, then we need to find an alternative place while we work on that larger vision of addressing and clarifying the municipal code language.”
Hayes said controversial ordinances consistently produce procedures toward a final version that is acceptable by all interests.
Knox said she’s optimistic that the Coastal Coalition’s heavy lobbying of the city on the issue will be fruitful.
“There are cities that have successfully figured out the vending thing,” Knox said. “I’m hoping that’s the direction we’re going in, because otherwise it just becomes lawless and the biggest bullies take over open space for their own personal thing.”
Hayes offered an estimated timeline of progress on the city’s vehicle habitation ordinance, implementation of which resumed April 1 after stopping during the COVID-19 pandemic.
The ordinance prohibits people from living in their vehicles on any street or public property between 9 p.m. and 6 a.m. and within 500 feet of a home or school at any time.
“I think we’ll have a better sense of how this all shakes out after ... the next six months, because it’s only been a couple of months that we’ve been doing it,” Hayes said. “These are the things that kind of take time to see how they actually pan out.”
Installation of signs informing drivers of the prohibition is the next step in the enforcement process, Zaiser said. A list of locations for the signs is being finalized for the city Transportation Department, which will print and install them with a target deadline of this summer, he said.
The list already includes all Ocean Beach parking lots and the Sunset Cliffs area, but Zaiser requested community input to reflect the activity gauged by those most affected.
“If there are any other spots that you guys feel are missing, or where you’ve seen vehicle habitation become a persistent issue over the course of the last few years, we’ll add it to the list,” Zaiser said.
Enforcement of the city’s ordinance regulating residential vacation rentals listed on websites such as VRBO and Airbnb officially began May 1.
Manuel Reyes, Ocean Beach representative for San Diego Councilwoman Jennifer Campbell, said short-term rentals are regulated primarily by the city treasurer’s office.
As of May 1, the Light reported, the city had issued 4,888 two-year licenses for hosts operating whole-home rentals, according to the treasurer’s office. When the City Council first approved the regulations two years ago, it had expected demand would be so high it would have to conduct a lottery for doling out licenses, which cannot exceed a city-imposed cap of 6,501. But that wasn’t the case.
The treasurer’s office reported on its website that 1,613 licenses are available citywide, except for Mission Beach, which has a separate cap because it historically has had a high proportion of vacation rentals. Demand for licenses there was predictably high, with a total of 1,290 applications submitted, and a lottery was conducted for the allowed 1,082 licenses.
For the rest of the city, 3,806 licenses were issued for whole-home rentals, bringing the overall total to 4,888.
Hosts must pay a fee of $1,000 for a two-year license.
Licenses also are required for home-sharing and for part-time hosts who operate rentals for less than 20 days out of the year. The number of such licenses is unlimited and the fee is much more modest, ranging from $100 to $225. In all, 2,214 such licenses were issued for those two categories.
Zaiser also discussed a proposed ordinance that would restrict tents and similar temporary housing on all public property, from sidewalks to roadways. The plan, sponsored by District 3 Councilman Stephen Whitburn, was forwarded by the City Council’s Land Use and Housing Committee in mid-April and is slated to be heard by the full council in June.
City’s Land Use and Housing Committee declines to offer a recommendation and calls for a comprehensive plan.
Though in some cases the ordinance couldn’t be enforced if space at a shelter is not available as an alternative to camping, tents would be permanently prohibited from “sensitive” areas, including parks, shoreline areas, canyons and trolley tracks and within two blocks of sites such as schools, nursing centers and shelters.
“This is the city’s toughest enforcement step that they’ve taken so far,” Zaiser said. “Basically, the tone is changing. We are no longer going to take no for an answer if we come to you offering shelter and services.”
Gloria’s support for the proposed law is made easier by a 70 percent increase in shelter capacity as well as diversification in shelter options for senior citizens, women and other groups, Zaiser said.
In addition, a safe-sleeping proposal is being submitted with the camping ordinance to offer homeless people designated locations to pitch their tents if they refuse traditional shelters. Though exact locations have not been identified, Zaiser said they will provide services such as restrooms, showers and warm meals.
“We need to show that as we’re taking a tougher approach on enforcement, we are also complementing it with other options and services for folks,” he said.