District 2 Councilmember Jennifer Campbell’s amendments to the Sidewalk Vending Ordinance were approved by San Diego City Council’s Community and Neighborhood Services Committee on Oct. 5.

Campbell asked for and was granted, amendments to the ordinance her office drafted and was passed by the City Council in May 2022. The amendments include clearer language that protects Constitutional rights while maintaining public order in the City’s public spaces and coastline. The amendments also include introducing impounding procedures to swiftly address rogue vendors who don’t comply with the city’s regulations.

“I’ve heard from constituents, stakeholders, and vendors themselves for the need to provide stronger enforcement,” said Campbell on Oct. 5. “With the amendments, we aim to create an environment where permitted vendors will continue to flourish providing valuable services and unique offerings to our residents. The amendments will also create a balance between protecting Constitutional rights, and maintaining public order while preserving the vibrant character of our community’s and the City’s public spaces and coastline.”

“We’ve recognized the need to revisit and amend the San Diego Municipal Code to address concerns with sidewalk vending and to address the First Amendment sidewalk vending and impounding procedures for enforcement,” said Venus Molina, Campbell’s chief of staff, in introducing ordinance amendments.

“Why are these amendments necessary?” she asked answering, “In the past year, rogue unpermitted vendors have found ways to work around this ordinance. Therefore, we recognize the need to revisit and amend the SD Municipal Code to address concerns about sidewalk vending while ensuring proper enforcement. The primary goal of the proposed amendments is to strike a balance between protecting First Amendment rights on the one hand while maintaining public safety, order, and accessibility on sidewalks, parks, and beaches on the other.”

Larry Webb, president of Mission Beach Town Council, and a member of the Coastal Coalition of beach leaders, was among about 30 speakers addressing the Sidewalk Vending Ordinance on Oct. 5.

“While we are in favor of many of the changes in the ordinance, the Coastal Coalition strongly believes that all commercial activity should be banned from San Diego shoreline parks and beaches,” Webb said. “California bans commercial vending activities from state parks and beaches. If the state is allowed to do so, the City should certainly be allowed to do so as well, to protect the public’s access to our City’s beaches and parks.

“All commercial activity is supposed to be banned at Mission Beach Park, which the City has ignored for the last five years,” continued Webb. “It is encouraging that the City is proposing stronger regulations on vendors, including confiscating their equipment. Our downtown small businesses are under assault almost daily by rogue vendors. We need to start (greater) enforcement of that today.”

The council member’s proposed Sidewalk Vending Ordinance amendment regulations would likely include: a space limit similar to the 24-square-foot limit applicable to sidewalk vendors; prohibit using or attaching equipment to any City property; and regulations may address the use of amplification, umbrellas, and other shade structures or equipment.

In drafting proposed amendments, Molina said they looked at regulations recently adopted by the San Diego Port and are considering definitions for expressive activity, handcrafts, and visual art drawing from the language used by the San Diego Port.

The Port’s definition of “expressive activity” states:
“Expressive Activity” includes all forms of speech and expressive conduct, including but not limited to the distribution of non-commercial information, solicitation of funds, donations, subscriptions, and/or signatures for a charity, religious organization, nonprofit, or government entity, and the sale of or performing artwork, speeches, and/or performances that are inherently communicative in nature and have only nominal value or purpose apart from its communication.

Expressive Activity items include but are not limited to newspapers, leaflets, pamphlets, bumper stickers, buttons, books, audio, video, compact discs, video discs, records, sculptures, paintings, and photographs, including prints of paintings and photographs, political campaigning activity, including the distribution of literature, stickers, shirts, cups or other promotional material such as signs and campaign messages, and any other similar item that is inherently communicative and has only nominal value or purpose apart from its communication.
Expressive Activity shall not include the provision of personal services such as hair weaving or massage, the application of substances or handcrafts to others’ skin or body parts including but not limited to piercings, or ink, paints, or dyes applied with a needle or machine (non-Henna tattoos), the creation of visual art that is mass produced or produced with limited variation, or the creation of handcrafts. This list of exclusions is not intended to be exhaustive.

Examples of “pure speech” under the City’s amended Street Vending Ordinance:
– Clothing, stuffed animals, etc. sold as a fundraiser by a nonprofit.
– Original art sold by the artist.
– Sale of books, music, paintings, photographs, sculptures, CDs, or recordings created by the vendor.
Examples of activities not considered “pure speech”:

– Sales of handcrafts, including jewelry, pottery, shea butter, incense, and incense burners.
– A vendor just saying the handcraft is expressive isn’t enough to make the conduct expressive for purposes of First Amendment protections.
– But sales of these items may be protected as “pure speech” if the totality of the facts suggests the vendor’s sales are inextricably intertwined with an expression of a religious, political, philosophical, or ideological message.
Administrative citations
The proposed Sidewalk Vending Ordinance amendments would remove the initial warning for non-compliance and replace it with a $100 fine for permitted vendors and a $250 fine for unpermitted vendors. Second violation: $200, $500. Third violation: $500, $1,000. Fourth violation: $500 and/or impoundment, $1,000 and/or impoundment.
The City is also proposing the adoption of the impounding mechanism currently employed by the City of Orange. That would allow immediate impound of a vendor’s equipment or goods if the vending poses certain public health and safety concerns, including vending food without a valid health permit.