Regulations being drafted to address ‘First Amendment vendors’ in shoreline areas
San Diego hopes to have a framework ready for review by the end of this month to differentiate between those who are protected by the First Amendment and those who aren’t.
To address a proliferation of sidewalk vendors operating on First Amendment claims in shoreline parks, new language is being crafted to be worked into the city of San Diego ordinance that regulates vending.
The intent is to have a framework presented to the San Diego city attorney’s office by the end of this month for review. Soon after, the recommendations would be brought forward at applicable city meetings for public input.
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“People are vending under the guise of First Amendment protections, so we are going to clean up [the ordinance’s] language,” said Venus Molina, chief of staff for City Councilwoman Jennifer Campbell, whose District 2 includes Point Loma and Ocean Beach. Campbell’s office helped broker an agreement with the California Coastal Commission that allowed the ordinance to be enforced in coastal areas.
“You are either vending or you are protected by the First Amendment. We’re trying to differentiate between the two,” Molina said.
The City Council passed the ordinance last year and it took full effect in most of the city June 22, 2022. But its restrictions focusing largely on where vendors can operate could not be enforced in coastal communities while awaiting review by the Coastal Commission.
The commission agreed in August last year to withdraw its review and allow full enforcement in the coastal zone.
That enforcement began Feb. 1 and is carried out in shoreline parks by city rangers.
The ordinance requires permits and includes health and safety regulations. It aims 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 on the cross streets and side streets in those areas.
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.
Since then, however, some sellers have continued operating in shoreline areas, citing a First Amendment exception.
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.”
But city spokesman Benny Cartwright said earlier this year that San Diego municipal code language also allows for “a broad interpretation of what expressive activity is, including art, painting and handmade jewelry.”
“There is currently little guidance in the municipal code of what is and what is not considered vending protected by the First Amendment,” he said.
Cartwright said the city is required to allow park space for First Amendment activity, provided it does not block walkways, traffic and emergency access.
The planned clarifications “will ensure there is no ambiguity on who is subject to regulation under the ordinance while improving our enforcement efforts,” Cartwright said last week. “This clarity will take the guesswork out of enforcement and ensure that citations for ordinance violations don’t get thrown out by the administrative judges who adjudicate them.”
While the amendments go through the legislative process, the city Parks & Recreation Department is creating zones where those claiming exceptions due to freedom of expression and speech can operate, “similar to how Balboa Park has done for years prior to the state law requiring cities to allow sidewalk vending,” he said.
Molina is working with the city attorney on language that she said will both respect state and federal laws that supersede local ordinances and regulate vendors who are trying to “bypass the system.”
“There are two big pieces of law that supersede our ordinance: Assembly Bill 946, which is the state bill on vendors that says we cannot criminalize vendors. The other is the First Amendment, which protects religious and political folks,” Molina said. “We have to respect that. But we are trying to define this a little more. We want to differentiate when you are protected by the First Amendment and when [that does not apply].”
“People are upset because they think we’re not doing anything about this, but we are.”
— Venus Molina, chief of staff for City Councilwoman Jennifer Campbell
“If you are selling anything, you are a vendor and need a permit,” Molina added. “Some are saying they are a religious organization and selling candles, but that is vending.”
City officials have said commercial activities seeking donations instead of a set charge are not considered vending.
Molina said the existing ordinance is “really good, but people are also creative” in trying to get around it. “So we’re doing an overhaul and cleaning up and adding the language that will help us enforce the ordinance.”
She said Campbell’s office is getting a lot of calls about vendors trying to operate under First Amendment protections.
“People are upset because they think we’re not doing anything about this, but we are,” she said.
The city wants to “have the right language that protects the First Amendment right and makes sure we rein this in before it gets out of control.”