San Juan Capistrano will regulate sidewalk vending with provisions that comply with the 2019 state law that prohibits municipal governments from banning the enterprise.

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The City Council voted 4-1 in April to give final approval to a new city ordinance outlining sidewalk vending restrictions, with Mayor Pro-Tem Derek Reeve dissenting.

The ordinance, which goes into effect May 20, states that vendors have limited access to paved public sidewalks and walkways in public parks. Any vending outside of these areas is prohibited, and all sidewalk vendors must obtain required permits. 

Permit applications will require the vendor to include, among other items, their California seller’s permit, a county health permit for food vending, and a city encroachment permit for stationary vendors, according to a City Council presentation in early April, when the council gave initial approval to the new law.

The California Safe Sidewalk Vending Act went into effect in January 2019. The City Council considered a sidewalk vending ordinance back then, but did not adopt one. Since then, sidewalk vending has been allowed without regulations, according to the city presentation. The city said its new ordinance will bring into compliance those vendors who have been operating unregulated since then so as not to pose a safety or welfare threat to the community.  

The original wording of the ordinance considered in early April noted that the First Amendment would exempt certain vendors from obtaining a city permit. 

“(The First Amendment vendor protection) provision was added in light of some recent litigation,” City Attorney Jeffrey Ballinger told the council. “These sidewalk ordinances are fairly new, however some cities were facing lawsuits and allegations that First Amendment protected art is entitled to additional protection. There’s a concept in First Amendment law that says governments cannot impose prior restraints, but can impose time, manner, and place restrictions.”

Vendors who have created, written, or composed their own material like books, art, or other recordings of their performances are also examples of First Amendment vending, according to the city presentation. 

The City Council majority sought to remove the portion of the ordinance that said certain vendors are exempt from obtaining a city permit due to the First Amendment, ultimately deciding it would be too difficult to identify and enforce, a point to which Reeve objected.

“I can’t vote for this anymore … when in doubt, I tend to lean on the side for liberty. If you’re concerned about treating people differently, and if we can’t define it, then we should eliminate the permit process for everyone. Don’t add First Amendment expression to a permit process … If you’re not going to have staff recommendations with that exemption in place, then either get rid of the permit process altogether or don’t vote for this,” Reeve said. 

The final language of the ordinance approved by the council does not include First Amendment exceptions.

Besides permit requirements, sidewalk vendors must follow other provisions. 

Vendors must keep their area clean, with no sound amplification or live entertainment. Vending within 100 feet of a private event approved by the city is also prohibited.

According to a city staff report, stationary sidewalk vendors will be prohibited in a portion of the historic downtown, due to small sidewalk widths and pedestrian foot traffic. 

The ordinance detailed that stationary sidewalk vending may take place between the hours of 5 a.m. and 12:30 a.m in non-residential areas. Roaming sidewalk vendors may only sell in residential areas between 8 a.m. and 8 p.m., and cannot vend in any alleyways or private streets. 

Failure to comply with the ordinance will result in penalties, such as suspension or rescission of vending permit or issuance of citations. 

The fines range from $100 for the first violation, $200 for the second violation, $500 for any violation after that if licensed vendors violate any elements of the ordinance. Fines range from $250 to $1,000 for vending without a city permit,  according to the staff report.

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