With the general consensus being it’s too early to tell yet if the City’s new Sidewalk Vending Ordinance is going to be effective, a new issue has emerged: First Amendment rights.

Street vending is one of several hot-button issues that has led beach community leaders to form a Coastal Coalition to speak collectively. The coalition is currently comprised of representatives from Mission Beach, Pacific Beach, and La Jolla town councils, as well as Neighborhood Watch.

One coalition member, Bob Evans, president of La Jolla Parks & Beaches, Inc., spoke for all recently in pointing out that enforcement of the Sidewalk Vending Ordinance is proving difficult to implement. That, Evans said, is because the ordinance presently “exempts any vendor claiming to be exercising their freedom of speech rights,” which he argues has allowed them “to continue to operate in just about any place they desire.”

Venus Molina, chief of staff for District 2 Councilmember Jennifer Campbell’s office, described the difference between people vending and those claiming to be exercising their free speech rights as “a fine line.”

Molina added there is a lot about the street vending situation that people aren’t aware of. “First, we were lucky to get the Coastal Commission to bypass review of the Sidewalk Vending Ordinance, otherwise we wouldn’t even have enforcement in coastal communities, which would have had to wait at least another year,” she said adding, “We really wanted to make sure we had something in place before the summer, because we know folks in the business community wanted to see something happen.”

The Coastal Coalition sent a letter dated April 3 to Mayor Todd Gloria and City Attorney Mara Elliott that reads: “Recent visits to our coastline parks and beaches reveal an alarming increase in the number of sidewalk vendors in the Coastal Zone following the initial successful enforcement period of the Sidewalk Vending Ordinance. We are witnessing commercial vendors selling food, ice cream, and merchandise (including T-shirts, plush toys, jewelry, and services) returning to our coastal areas in violation of the Sidewalk Vending Ordinance. This negatively affects scenic views and public access to shoreline parks and beaches.

“These vendors continue to crowd shared-use pathways with displays, tents, tables, and equipment, and do so with impunity,” continued the coalition’s letter. “The vendors claiming First Amendment rights are clearly gaming the City’s system, making a mockery of City personnel’s inability to enforce due to lack of clear direction concerning the First Amendment. The vendors are currently winning this battle, while the greater public is the victim.”

“SB 946 says you cannot criminalize vendors,” pointed out Molina. “They’re protected by state law. People forget that, as we move forward, we need to consider that state law protects vendors, while making sure they obtain their permits.”

Added Molina, “SB 946 specifically exempts those practicing their First Amendment rights, whether those be political, religious or having to do with promoting the arts, dances, performances, etc. So, if people are doing things like providing a service, that does not fall under the Sidewalk Vending Ordinance where someone is selling a product.”

Molina added that distinguishing between whether vendors are selling products governed by the Sidewalk Vending Ordinance – or actually exercising their First Amendment rights – can be tricky. “You have some vendors saying, ‘I’m giving these things away and taking donations,’” said Molina. “That’s very clearly someone scamming, trying to bypass the system.”

The Coastal Coalition’s letter to the City argues that the National Park System has more effectively handled the vending-versus-free expression issue by “allowing First Amendment activities while prohibiting the sale of message-bearing items other than printed material. This restriction is necessary to prevent the proliferation of unregulated commercial activity that would be inconsistent with park resources and values that would impinge upon and degrade park scenery, and that would disrupt the visitor experience. Our local parks and beaches should be provided with the same respect.

“The citizens of San Diego were promised robust enforcement of the Sidewalk Vending Ordinance, yet our hard-working park rangers are hamstrung without a clear directive from the City Attorney. The City Attorney needs to swiftly clarify what is and what is not protected under the First Amendment as related to the Sidewalk Vending Ordinance, so that park rangers and vendors have a clear understanding of the law.”