New State Law Limits City Authority to Regulate Sidewalk Vendors

I. SUMMARY

Intended to increase economic opportunities to low-income and immigrant communities, increase access to culturally significant food and merchandise, and to contribute to safe and dynamic public spaces, Senate Bill 946 (“SB 946”) limits local authority to regulate sidewalk vendors. Any local regulations on sidewalk vendors must comply with newly enacted state laws that generally limit local authority to impose regulations that are directly related to “objective health, safety or welfare concerns.” SB 946 also limits penalties for violating local regulations to administrative fines, but does allow cities to enact a permitting scheme and prohibit sidewalk vending near farmer’s markets, swap meets, and other events.

II. DISCUSSION

Effective January 1, 2019, SB 946 adds Chapter 6.2 to the portion of the Government Code applicable to the government of cities and counties. By its own terms, it applies to both general law and charter cities¹ and defines a “sidewalk vendor” as someone who “sells food or merchandise,” on a sidewalk or pedestrian path, with or without a pushcart, stand or other conveyance.² It prohibits³ local agencies from regulating sidewalk vendors except in accordance with Government Code Sections 51038 and 51039, and provides that existing ordinances regulating sidewalk vendors remain valid so long as they substantially comply with SB 946.⁴

If a local agency adopts sidewalk vendor regulations, these regulations must comply with the following standards:

• The regulations cannot require the sidewalk vendor to only operate within specific parts of the public right of way except when the restriction is directly related to objective health, safety or welfare concerns.⁵
• The regulations cannot prohibit sidewalk vendors from operating in a public park, but the regulations can prohibit stationary sidewalk vending where the city already has an agreement with a third party for exclusive concessions inside the park. A city can also adopt reasonable time, manner and place restrictions inside public parks if the restrictions are directly related to objective health, safety or welfare concerns, when necessary to ensure the public’s use and enjoyment of the park, or necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the character of the park.⁶
• The regulations cannot require a sidewalk vendor to obtain the approval of a non-governmental entity before selling food or merchandise.⁷
• The regulations cannot restrict sidewalk vendors to operate only in designated neighborhoods except when the restriction is directly related to objective health, safety or welfare concerns. Cities can prohibit stationary sidewalk vendors from operating in residential zones, but cannot prohibit roaming sidewalk vendors.⁸
• The regulations cannot restrict the overall number of sidewalk vendors permitted to operate within a jurisdiction, unless the restriction is directly related to objective health, safety or welfare concerns.⁹
• The regulations can limit the hours of operation for sidewalk vendors so long as they are not unduly restrictive. In commercial areas, these restrictions cannot be more restrictive than any limitations on other businesses on the same street.¹⁰
• The regulations can impose sanitary conditions and requirements to comply with disabled access standards.¹¹
• The regulations can require sidewalk vendors to obtain a permit or business license, so long as the regulations do not require a social security number from the perspective permittee.¹²
• The regulations can require sidewalk vendors to submit information to the city regarding their operations, including a mailing address, a description of merchandise, and other information.¹³
• The regulations can prohibit sidewalk vendors from operating near farmers’ markets, swap meets, and other events subject to a special permit.¹⁴

SB 946 makes clear that perceived community animus and economic competition do not constitute objective health, safety or welfare concerns.¹⁵ The new law also limits penalties for violating local regulations on sidewalk vendors to administrative citations, the amounts of which range from $100-$500 for most violations and fines ranging from $250-$1,000 for vending without a permit.¹⁶ Criminal penalties and arrest are not available to cities as enforcement tools.¹⁷ Finally, cities are required to give notice to a cited individual that he/she has the right to request an ability-to-pay determination before the administrative fine adjudicator.¹⁸

III. CONCLUSION

Cities that already have an ordinance regulating sidewalk vendors may want to review it to determine whether it substantially complies with these new State standards.

Information on www.jones-mayer.com is for general use and is not legal advice. This update is not intended to create, and receipt of it does not constitute, an attorney-client-relationship. Should you have any questions or require further clarification of the above, please contact Keith F. Collins at our office at (714) 446-1400, or by email kfc@jones-mayer.com.

¹ Cal. Gov. Code § 51036(d).
² Cal. Gov. Code § 51036(a).
³ Cal. Gov. Code § 51037(a).
⁴ Cal. Gov. Code § 51037(c).
⁵ Cal. Gov. Code § 51038(b)(1).
⁶ Cal. Gov. Code § 51038(b)(2).
⁷ Cal. Gov. Code § 51038(b)(3).
⁸ Cal. Gov. Code § 51038(b)(4).
⁹ Cal. Gov. Code § 51038(b)(5).
¹⁰ Cal. Gov. Code § 51038(c)(1).
¹¹ Cal. Gov. Code § 51038(c)(2)-(3).
¹² Cal. Gov. Code § 51038(c)(4).
¹³ Cal. Gov. Code § 51038(c)(8).
¹⁴ Cal. Gov. Code § 51038(d).
¹⁵ Cal. Gov. Code § 51038(e).
¹⁶ Cal. Gov. Code § 51039(a).
¹⁷ Cal. Gov. Code § 51039(d).
¹⁸ Cal. Gov. Code § 51039(f).