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City struggles to enforce sidewalk vending ordinance after vendors cite First Amendment loophole

city ordinance sidewalk vending
Posted at 1:23 PM, Sep 03, 2023

SAN DIEGO (KGTV) — The San Diego City Council approved Ordinance O-21459 in May 2022. The ordinance laid out ways for vendors to legally sell items on the street, including getting required permits and licenses, as well as regulations to follow. The city began enforcing the new sidewalk vending ordinance in beach areas the following February.

But since then, vendors have found a loophole in the ordinance that allows them to claim they are exempt from following it because of the First Amendment.

Page 30 of the ordinance reads as follows: "The following persons, entities or activities are exempt from the requirements of this Division: (I) Any vendor or individual 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."

Chris Cott, who lives in the La Jolla Shores area, is one of the neighbors upset with the current state of enforcement.

"They don't pay a fee to be here. They don't pay rent, they don't pay taxes, and they don't have insurance," Cott said.

He's frustrated that park rangers can't enforce the ordinance in some cases because of the exemption.

"In February we had a ban for about a week, or maybe two weeks, and then they just said they wanted to come back and they did come back," Cott said.

The city says it is still enforcing the ordinance. In fact, it claims it issued 174 citations at shoreline parks this year. But the city admits that the loophole has hampered enforcement efforts.

Now, the city says the Parks and Recreation division will draft changes to the ordinance for the San Diego City Council to approve in the fall.

Rachel Laing, the communications director for Mayor Todd Gloria, told ABC 10News in an email Friday that the city is going to create zones where people claiming freedom of expression or speech can operate. Laing said it's similar to how Balboa Park had done it for years, prior to the state law requiring cities to allow street vending.

Vendors ABC 10News attempted to talk with at both La Jolla Shores and Balboa Park didn't want to be interviewed on camera. Under the ordinance, vending is banned from Memorial Day to Labor Day at Balboa Park.

But one vendor who sells crystals at Balboa Park told ABC 10News he's allowed to share his crystals, citing that same First Amendment exemption. The vendor claims he's not selling them, but accepts contributions and is "not going anywhere."

Laing says the city will "make sure the ordinance is much more clear as to what constitutes the vending activity being regulated."

Cott hopes that comes soon.

"We're basically tired of just them ruining the view and ruining the grass," he added.