SAN DIEGO — Tempers flared as the City of San Diego moved to enforce its new sidewalk vending ordinance.
One vendor, who says he’s an artist and did get a permit, refused to move across the street to the designated sidewalk vendor area. City Parks and Recreation rangers, with San Diego police by their side, repeatedly asked him to move until finally he was issued a citation.
Another woman, who is also an artist and drives down from San Bernardino to sell her wares at the Ocean Beach Farmers Market was also issued a citation. She says she was told to move the grassy area near the beach, but now because she has a vendors permit, she is being cited because she doesn’t fall under the “first amendment protected artists.”
“All art and creative expression – street performers is protected under the first amendment.” said William Dorsett, a longtime artist and advocate.
Dorsett says the ordinance cannot be enforced because their art is protected under the first amendment. And he says the way the ordinance is written, it explicitly protects them.
“It says the following entities are exempt from requirements of this division: any vendor or individual or any individual engaged solely in artistic performances, free-speech or political activities or engage solely in vending of items constituting expressive activity is protected by the first amendment.”
However, the ordinance clearly states a “vendor” cannot operate within 10 feet of a driveway or parking lot, nor a high traffic bike and shared use paths or 25 feet of any beach access point or pier.
So clearly the vendor, who didn’t want to be identified, is in violation, but the question remains: is his art protected under the constitution? According to constitutional law experts – as long as an artist is only accepting donations – that art is protected not matter what or where.
“Legally you look at both ‘where’ and ‘when.’ Now, the ‘how’ was important too because think about what kind of activity is protected by the First Amendment: Speech, expressive activity,” said Wendy Patrick, a legal analyst. “There’s a lot of First Amendment protections that everyone enjoys, but you can’t engage in First Amendment protections anywhere to be just anywhere.”