By Albert J. Maldonado, Best Best & Krieger LLP
It has been nearly 2 years since Senate Bill 946 went into effect, which limits how local governments can regulate sidewalk vendors. In that time, I have helped several cities and towns enact and update their sidewalk vending ordinances and I have identified some recurring issues and lessons learned. I offer three takeaways:
- Property Location Matters
SB 946 addresses vending “upon a public sidewalk or other pedestrian path.” In other words, it touches vending upon the public right-of-way. It does not directly address street vending, either by individuals on foot or with a food cart on the street. It also does not address food trucks on the street. With SB 946 taking away some enforcement teeth from local agencies, it is important to know to which property the legislation applies because where it does not apply, local governments can rely on their normal enforcement mechanisms, including criminal, civil, and administrative penalties.
Sometimes, vendors set up their operations on vacant lots or abandoned parking lots. Both of those properties are not in the public right-of-way and therefore SB 946 does not limit local governments’ abilities to use their normal enforcement mechanisms from regulating that conduct. Therefore, when local governments are trying to cite vendors, whether food or merchandise vendors, for operating on property that is not in the public right-of-way (sidewalk), they should search their local codes to determine what enforcement mechanisms are available to use. For starters, look at the code chapters related to business licensing and land uses in the development code.
- Show Your Work
Sidewalk vendor regulations must be directly related to “objective health, safety or welfare concerns.” In order for governmental regulations to survive constitutional scrutiny in the event of a legal challenge, the government must demonstrate the rational basis for the regulation and it cannot be arbitrary. Thus, the ordinance or resolution, and the accompanying staff report, should clearly explain why the government is enacting the regulations. For example, if a city wants to limit sidewalk vendors from vending within so many feet of the downtown area, sports arenas or concert arenas, the recitals of the resolution or ordinance should give an explanation for those regulations (e.g., traffic concerns of vehicles and pedestrians based upon data). Or if a city wants to place a cap on the number of sidewalk vendors allowed in the city, it must give reasons for how it came up with the number, otherwise that regulation would be subject to being struck down as an arbitrary regulation.
- Consider Adopting Environmental Health Code
Third, SB 946, by its own terms, does not affect the applicability of the California Retail Food Code to vendors who sell food. The Retail Food Code governs how food must be handled and prepared safely and in proper conditions and settings. Counties adopt environmental health codes under the authority of the California Retail Food Code and some local agencies choose to adopt by reference their respective county’s environmental health code as their own. However, for local cities and towns to be able to enforce the environmental health code as to some food vendors, they must confirm that they have adopted their county’s environmental health code by reference and they have designated the city as the, or one of the, enforcement agencies responsible for enforcing that environmental health code.
Albert J. Maldonado is an attorney in Best Best & Krieger LLP’s Municipal Law practice group. He can be reached at firstname.lastname@example.org.