By Geoff Page
The City of San Diego began enforcement of the new vendor ordinance in Ocean Beach, Wednesday morning, February 1, at the foot of Newport Ave. Upon getting a tip that this was happening, around 11:00 a.m., this writer went down for a look.
The tipster said they saw SDPD and sheriff’s personnel, which seemed unusual. As it turned out, what looked like sheriff deputies were city of San Diego park rangers, as can be seen in the picture above.
It is remarkable to see the rangers were dressed in the same military manner as the SDPD.
As reported in The Rag’s January 31 story about the Peninsula Community Planning Board’s January meeting, the city’s ranger staff is taking the enforcement lead.
According to an SDPD officer, the police presence was only to ensure things remained peaceful while the rangers did their job.
The officer also explained a distinction between first amendment, freedom of speech vending versus basic reselling vendors. Artistic expression is considered free speech so vendors who are making and vending their own artistic creations are not governed by the same rules. Here is what the new ordinance states:
§36.0114
(0-2022-43 REV.)
Non-Applicability
The following persons. entities or activities are exempt from the requirements of this Division:
(1) 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:
The reference to “this Division” means the entire vendor ordinance does not apply to these types of vendors. If ever a red flag flew about anything, one flew immediately about this distinction. The ordinance does not describe how, or who, will decide what is art and what is not. There is nothing more subjective than art, anyone can say they are an artist.
As it developed, there was an artist vendor who was given an administrative citation and who was refusing to budge. The picture below shows where he was set up.
All photos by Geoff Page.
Forman had his van backed into a space in the pier parking lot. The back doors of the van were open showing what looked like a workshop and a sleeping area. Forman explained that he used a laser cutting machine that he powered with solar panels on the roof of his van. He worked on his pieces as he vended.
Forman was taking a small part of the wide sidewalk to set up a table displaying his artwork as seen in the picture below.
Forman was angry for two reasons. The first was that the rangers told him he could not be where he was but he could move to little park area between the memorial and the lifeguard station. This area was somehow designated where the first amendment people could set up.
Forman said that because he was protected by the freedom of speech provision, he could set up on any public property anywhere. He seemed to be correct after reading the ordinance and seeing that artistic vendors are exempt from the whole thing.
A review of the sidewalk vending map did not show any detail about where the first amendment-type vendors were required to set up. https://www.sandiego.gov/sidewalk-vending/maps
In fact, it appears from the city’s vendor map that no sidewalk vending is allowed west of Abbott as seen in the photo below.
The second reason Forman was angry was the ticket he was issued. It seems he has good reasons for feeling this way. The ticket cited Municipal Code 63.0102 (b) (25) and “obstruct travel of pedestrians park/plaza” was handwritten next to that. Ticket was issued by the Parks & Rec department.
Here is the referenced Municipal Code:
§63.0102 Use of Public Parks and Beaches Regulated
(b) It is unlawful for any person within any public park or plaza or public beach or beach areas within the City of San Diego to do any of the acts enumerated in Section 63.0102(b)
“(25) Obstructing Traffic. It is unlawful to obstruct the free travel of any vehicle or pedestrian over any of the walks, roads, or avenues of any park or plaza property.”
The code section contained a set of definitions that shed light on this citation. Here is how a “plaza” is defined:
Plaza means a public square or other large urban open space typically 1,000 square feet or greater in size under the control of the City’s Parks and Recreation Department and designated as a City plaza, which is primarily intended to allow the public to congregate to enjoy surrounding public amenities, such as fountains, benches, tables, landscaping, or historical structures.
It is obvious from the picture showing Forman’s location that he was not in a “plaza.”
Here is how a “park” is defined:
Public park means any property designated, dedicated or developed by or on behalf of the City of San Diego for park or open space use, including sidewalks and paths within the park or immediately adjacent to the park perimeter.
Once again, one only need look at the picture to see Forman is not set up in a “park.”
The picture also shows that Forman was not obstructing sidewalk traffic as he was using a small part of a wide sidewalk area. He says he plans to fight the ticket and it certainly looks like he will win that fight.
All that said, Forman was not without fault in the situation. He said he needed power to run his laser. Generators are not allowed in park areas so he uses rooftop solar. The problem was the panels are mounted on the roof of his van so he needs the van near to his display area where he works.
Having the van nearby entailed taking up a parking spot in the pier parking lot all day long. That was not what public parking was intended for. While Forman said he did not want to move on principle, it appeared the power problem was really the main reason.
Meanwhile, two vendors were set up in the “designated” area. One lady displayed bracelets made of crystals and spiritual books and another had a large display of knitted goods. No one bothered these two vendors.
The new ordinance mentioned Ocean Beach when it discussed the summer moratorium:
Sidewalk vendors shall not vend on sidewalks on the following streets during the summer moratorium:
Newport Avenue between Abbott Street and Sunset Cliffs Boulevard in Ocean Beach
It appears that the new ordinance has a major flaw in it regarding what is art and what is not.
And, the enforcement effort also seems to be flawed. First Amendment-type vendors are being told they can only set up in a designated area that does not seem to be spelled out anywhere in the ordinance. The rangers are issuing tickets for ordinance infractions that do not apply that, certainly not in Forman’s case.
{ 36 comments… read them below or add one }
I cannot believe this “art” loophole exists. How disappointing.
Agreed. Now it’s going to be filled with the same vendors selling their “art” which will overrun the same area.
Hello, my name is William J Dorsett. I am an artist and first amendment rights activist. I too was bothered by the rangers.
I have a video on YouTube with the whole encounter.
I spent a year working with parks and rec to get the artist protection written into code . I tried to get them to make it less vague, but they didn’t hear my warning of a law suit I have spent almost 9 months educating various park rangers on this and yet they still don’t understand. I have been fighting for artists and buskers rights since 2008 I’d love to go over this deeper with you.look up the video on YouTube under my name. It’s good stuff
I hope you can clarify a couple of things for me regarding free speech and art on public lands i.e. – Balboa Park, Seaport Village, and other state areas.
1) May I sell my creative art (not donated funds), to include prints of my art, in these areas?
2) May I do this with only a permit, and not a business license?
3) And finally, what general restriction am I facing in these areas.
Thank you for replying. I am a disabled veteran as well.
Charles
It’s there because the supreme court has ruled all expressive activity, from street performers to artists are protected expressive activity under the first amendment. Further more the sales of expressive activity is protected. This is double by the first amendment of the California constitution. I pushed hard to get it codified so our tax dollars wouldn’t be wasted on first amendment lawsuits. But they have been crossing that line 9 months since the code was first applied downtown and in Balboa park. So first amendment lawsuits are inevitable now.
I think the problem is the lack of any detail about what is art, William. And, defining that is very hard. But, they could have perhaps put in a little more specificity.
For example, maybe require artists to be performing their art at their vendor stall, like Mr. Forman was doing, or somehow authenticate the person is an artist and makes what they have on display.
What about art that has to be made elsewhere because it requires equipment, like a kiln or a table saw? Require the artist to submit a cell phone video of them making the art? It gets complicated.
As written in “Sparks V White 2007, ““The protection of the First Amendment . includes . music, pictures, films,
photographs, paintings, drawings, engravings, prints, and sculptures”; Bery v. City of
New York, 97 F.3d 689,
“Paintings, photographs, prints and sculptures . always communicate some idea or
concept to those who view it, and as such are entitled to full First Amendment
protection.”; see also Piarowski v. Ill. Cmty. Coll. Dist. 515,
“The First Amendment shields more than political speech and verbal expression; its
protections extend to entertainment, Winters v. New York, 333 U.S. 507,
film, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
theater, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,
music, without regard to words, Ward v. Rock Against Racism, 491 U.S. 781
peaceful marches to express grievances to governmental authorities, Gregory v.
Chicago, 394 U.S. 111,
“The Constitution looks beyond written or spoken words as mediums of expression.”
Hurley, 515 U.S.”
This gives a list of what is an is not protected and why. “The protection of the First Amendment . includes . music, pictures, films,
photographs, paintings, drawings, engravings, prints, and sculptures” IT went on to say, Paintings, photographs, prints and sculptures always communicate free speech, basically any of these items you yourself created are protected speech.
What is interesting is that jewelry, pottery, a wide variety of handicrafts and hand crafted items are not protected because they are utilitarian, and although they do communicate some expressive features, the utilitarian issues usually blocks them from being protected. Even art on clothing would have some grey area one way or another. Yet those handicrafts, clothing, jewelry and more can once again gain protection if they have a spiritual or religious or political message.
The port of San Diego drafted an ordinance in 2011/2012 that actually listed what was and was not protected. I helped get that ordinance into place and their busker permit abolished for being illegal. I tried to use that with this new ordinance, but the city only partially listened to my warnings. They added first amendment protections, but were not clear about what was art.
The supreme court gave a viable list on many occasions and it is acceptable to follow that list. The vagueness of this current code actually makes it unconstitutional as it allows arbitrary use of enforcement based on an individual officer or rangers open interpretation of the law.
Finally even sales are protected if the item sold is expressive activity, as written here, “Concerning the First amendment protected expressive activity and sales:
“The degree of First Amendment protection is not diminished merely because the
[protected expression] is sold rather than given away.” City of Lakewood v. Plain
Dealer Pub. Co., 486 U.S.
“It is well settled that a speaker’s rights are not lost merely because compensation is
received; a speaker is no less a speaker because he or she is paid to speak.”; Village
of Schaumburg v. Citizens for a Better Env’t, 444 U.S 620 (1980)
“Even purely commercial speech is entitled to significant First Amendment
protection.” See Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457
“It is a proposition too plain to be contested, that the constitution controls any
legislative act repugnant to it.” See Marbury v. Madison, 5 U.S. (1 Cranch) 137
“in a facial challenge to an ordinance, that the merchandise at issue was
protected”Gaudiya, 952 F.2d at 1065”
I hope this answers everyone’s questions. I am not a lawyer, I don’t know everything about the law. And none of what I said can be considered legal advice. Just sharing a little I know about the 1st, 4th, and 14th amendments. I also know a little about pro se defense and how to research muni code and create a defense based on said research! I have used my knowledge to point out to various city entities the legalities of having muni code against creating permits for busking or art, because a permit is prior restraint on free speech!
Thanks for adding more good information, William.
It is my [pleasure to help people learn this stuff.
Just Curious ….Do these people/vendors have to pay sales tax? Report income to IRS? An exemption for “art” what bright star thought up that one?
As far as I know they do. Whether or not they do is another story.
I can see the sign now…. “Artisan Kettle Corn!”
Yeah that wouldn’t fly. Kettle Corn is food, not art. I have a friend who tried that with “artisanal food, it didn’t go as he thought it would.
Unless I am reading the statute wrongly the only “art” that is covered/protected is “artistic performances”. So, is someone selling a piece of “art” engaged in an “artistic performance”?
Engaging in artwork is also considered to be an expression of free speech it seems.
Well, one interpretation of the statute is that the term “artistic performances” is followed and lumped in with core First Amendment type activities, so that simply drawing/selling art without more expressive First Amendment actions related to to the “art” means that it is in fact covered by the statute. Thoughts?
Yes, I think because artistic performances are included in this part of the ordinance does mean it is considered speech. I would bet there is established law on this and that’s why it was it’s in here.
Did a quick search and found this a few times, The Supreme Court has said art is “virtually anything that the human creative impulse can produce.” So, it was correct to include it. Drawing art is a “creative impulse.”
Does that answer your question? I was concerned that I may have misunderstood it.
Thank you, yes, you understood my question and answered it.
Regards,
/s/ Chris K.
Would 3D printed guns be considered artistic expression and the CAD drafting/drawing of them be considered artistic performance?
3D printed guns are part of a creative impulse?
Art itself is protected speech!
“The protection of the First Amendment . includes . music, pictures, films,
photographs, paintings, drawings, engravings, prints, and sculptures”; Bery v. City of
New York, 97 F.3d 689,
Sales of art, and other expressive items have the same constitutional protections.
“The degree of First Amendment protection is not diminished merely because the
[protected expression] is sold rather than given away.” City of Lakewood v. Plain
Dealer Pub. Co., 486 U.S.
“It is well settled that a speaker’s rights are not lost merely because compensation is
received; a speaker is no less a speaker because he or she is paid to speak.”; Village
of Schaumburg v. Citizens for a Better Env’t, 444 U.S 620 (1980)
Jewelry, clothing, and a multitude of handicrafts are not protected because of utilitarian value. Yet those things with a common spiritual or political message would give those items protection. Though it has to be items you create, it can not be resale items at all.
I am not a lawyer this is not legal advice!
What you said described what the one lady had displayed in the picture. There was definitely a spiritual component of her wares and what they could do for a person, spiritually.
Then she would probably be protected. Though not any thing can have a message and be sold. Otherwise car dealers would just park in the lots and sell Hot Rods for Jesus!
The folks are selling retail items. Their “artistic performance” might be the chatter they engage in with a potential buyer of the various & sundry tchotchkes. But all the trinkets are still simply retail goods at the end of the day.
I think the pure resellers will be gone but I’m guessing many will discover an hidden, inner artist and begin to create.
I ran down by the wall yesterday around 4:00 and it was wonderful. All the vendors by the wall and on the little park area were gone. There were three set up on the sidewalk opposite the pier parking lot. One of them was Mister Forman mentioned in the article. These three did not seem intrusive where they were.
I’ve been amazed the last few days looking at the OB Hotel Pier/surf cam (since it’s working again). There’s PEOPLE getting to…just sit on the wall talking, stare at the horizon and ocean, couples and families and others with dogs at their feet looking totally relaxed with bicycles and skateboards able to cruise through. People are just walking along without being crushed together and funneled into a narrow gap between all the structures.
While the camera no longer pans back and forth since the January storms, at least what I’m looking at is back to looking like…you know, the beach?
I didn’t realize how ugly it all was until the crass, overwhelmingly commercialized yard sale aspect of it, was gone from the view… How refreshing to see my home beach back.
___
So what ever happened to the giant Sports Arena weekend yard sale and others that were scattered around? Are those all gone now? That was always a great way to concentrate this sort of thing.
sealintheSelkirks
I know what you mean about how pleasant it is to see the beach, again, without all the commercial/vendor/artist/whatever set-ups. Something I have found encouraging about the comments to this article is how many people have said similar things, regardless of whatever the law is/is not about all this. There seems to be a commonality of opinion of sorts, which is nice to see for a change nowadays.
Regards,
Chris Kennedy
You are correct, seal, it looks like the beach once again. There was one artist set up in the little park area and another was beginning to set up last night. But, the wall is finally free of all that stuff.
The one vendor focused on in the article is the one I was most annoyed with. They took up ALL the bike parking adjacent to the beach. It’s best to lock a bike within view when possible and it was not possible because of the one vendor. Hope this improves and that improvements are permanent.
I don’t remember bike racks being in that area, are there some?
Geoff, The bike racks are bike shaped metal sculptures on either side of the main sculpture. Look at the 3rd picture in this article. Upper right hand corner- you can see the wheel shaped base. In the first picture you cant see them because they are completely obscured by tables.
I guess I’ve been by there so many times I thought it was all sculpture, thanks. But, I don’t think those two racks qualify as “ALL the bike parking adjacent to the beach.” Whenever I’ve ridden to that part of the beach, I’ve chained up to one of the many signs in and around the parking lot.
Case law may say otherwise, but I don’t think the 1st amendment is a right to do commercial activity in an otherwise prohibited area. Commerce is not speech. Want to display art? Or your artisian kettle corn? Sure.
It also doesn’t grant you the right to obstruct a sidewalk or violate parking rules. It’s illegal to vend from a public parking spot.
I think any of the vendor laws regarding public safety, food safety, proximity should apply the same to 1st amendment activity or really any other stationary activity. In fact if those restrictions are not applied equally to non-vending activity, the vendors may have a good case that the city’s vending ordinance is in violation of SB 946.
The 1st amendment zone idea sounds a little Orwellian but I’ve seen that elsewhere, it might be considered a reasonable time and place restriction on 1st amendment activity.
It’s really not for the city to define what’s 1st amendment activity or not, that has to come from the constitution and precedent, so Mr. Dorsett is on the right track in his discussion. The language about political buttons has been used by others cities, and I suppose it’s law and enforceable as such, at least until a court says otherwise. The city should’ve sorted this out before drafting the ordinance, and it needs to now before it gets sued, although it may regardless. The city has been getting sued for years on the vehicle habitation ordiance, before and after the new ordinance, and they have been afraid to enforce it for the most part, despite not having any court ruling preventing them from doing so.
Actually the act of standing on the sidewalk itself is qualified as free speech. Kettle corn no matter what you do will never be free speach.its good food is not protected speach. And it’s not just case law, it’s supreme court rulings, federal law, state law and now city law they protects artists and performers. Doesn’t protect anything and everything. The actual list is pretty small.
When the state transferred the property to the city, the deed restriction requires recreational use. Perhaps the City has declared this unconstitutional.
What area are you referring too?
Well, I hate to tell you this, but art, performance art, and music are all recreational activities, as well as expressive activities. Political is the only expressive activity that you might not be able to claim is recreation, but for politicians, politics might very well be a hobby!