San Diego planning stricter street-vendor law in response to questionable First Amendment claims

Street vendors sell their wares along the sidewalk around Ellen Browning Scripps Park in La Jolla in late July.
(Howard Lipin/For The San Diego Union-Tribune)

Coastal, downtown leaders frustrated by four-year wait for crackdown, contending vendors have damaged the look and feel of popular areas


San Diego officials have revealed long-awaited details about how they plan to crack down on sidewalk vendors who are using dubious free speech claims to skirt city restrictions and continue operating in parts of Balboa Park and along the coast.

Mayor Todd Gloria said this week that San Diego must rewrite its 2022 sidewalk vending ordinance, which aims to simultaneously encourage vending but prevent a flood of new vendors from damaging the look and feel of popular tourist areas.

Gloria said the amended ordinance will clearly define the difference between vending, which is commercial activity, and free speech, which should be limited to authentically political and religious activity.

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The city will also revive special zones in Balboa Park and near the city’s beaches, where vendors claiming freedom of speech can continue operating, the mayor said. The goal is to prevent vendors from flooding those high-traffic areas.

Since the new law took effect, some vendors have refused to steer clear of banned vending areas based on claims they are selling jewelry, T-shirts or other goods that have political or religious components.

Examples include T-shirts featuring Jesus Christ or other religious leaders, hats saying Make America Great Again, necklaces featuring the Christian cross and tattoos of a religious or political nature.

“It’s clear that some vendors have found and exploited the lack of clarity in the definition of ‘vending’ and are claiming First Amendment protection for the sale of their goods,” the mayor said. “The amendments that will be brought forward will ensure that there is no ambiguity.”

Gloria said the changes will take the guesswork out of enforcement by park rangers and police, while also ensuring citations for ordinance violations don’t get thrown out by administrative law judges on appeal.

The special free-speech zones were used in Balboa Park for many years, when commercial sidewalk vending was almost entirely illegal in the park. The city was forced to begin allowing vending there by a 2018 state law, SB 946.

Leaders of the city’s beach communities say they support efforts to rewrite the ordinance, but only if the city is aggressive about distinguishing between legitimate and questionable free speech.

“It’s flatly not free speech,” said Larry Webb, president of the Mission Beach Town Council and member of the Coastal Coalition advocacy group. “If the revisions allow tattoos and other bogus activity to qualify as free speech, the city could be making it even easier for those vendors to continue operating.”

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Webb said it’s frustrating that the city law, which community leaders sought for nearly three years, is not enforceable and must be re-written.

City officials say they expect to present the revised law to the City Council’s economic development committee in October and potentially get approval from the full council by the end of the year.

Officials stressed that the special free-speech zones will be created in coming days — long before the law is revised.

Webb said he’s disappointed city officials have been unwilling to share preliminary drafts of the ordinance revisions with critics and vendors. He said transparency would allow both sides to help the city quickly work out any kinks.

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Meanwhile, downtown leaders are frustrated with the city’s sidewalk-vending law for different reasons.

They say the city has been unwilling to enforce the law, partly because it’s not clear when the carts of illegal vendors may be impounded.

“We need this ordinance amended and we need it amended quickly,” said Micheal Trimble, executive director of the Gaslamp Quarter Association. “It’s not moving at the speed that we want to see — or that the public wants to see.”

Trimble said the Gaslamp continues to be flooded each weekend by food vendors who use threats and intimidation to scare off vendors of retail goods. A group of 19 merchants has threatened to sue the city if action isn’t taken, he said.

Street vendor Becky Hofstetter said this week that vendors are being unfairly criticized and bullied by the city.

While not specifically addressing the free speech issue, Hofstetter said enforcement has been overly aggressive, contending park rangers have been “creating phony rules and chasing people out who are doing no harm whatsoever.”

Hofstetter said she thinks the problem is due in part to a distorted image people have of vendors.

“There’s been a lot of misinformation and a lot of negativity directed toward street vending that’s really unfair and unwarranted” said Hofstetter, who operates Becky’s Bottles and Makery. “There’s no need for all this heavy-handed behavior.”