Two area residents have filed a federal lawsuit against the city of San Diego, arguing their First Amendment rights have been violated by the city’s “unconstitutionally vague” ordinance on vending in local parks, including La Jolla.
The suit, filed May 8 in U.S. District Court in San Diego, seeks a judgment that would allow performers and other artists to operate where they see fit, along with an injunction to stop enforcement of the ordinance for buskers. It also seeks damages to cover attorney fees and other costs.
The plaintiffs are William Dorsett, who creates and displays artwork in public, including live painting and creation of palm frond roses, and Rogelio Flores, who performs in public with acts such as juggling and magic.
In February, the San Diego City Council amended an ordinance ed in 2022 that regulates vendors. The revisions led to the installation of 4-by-8-foot concrete pads called “expressive activity” zones in La Jolla and other area parks where people with defined free-speech protections could operate. The areas are available on a first-come, first-served basis.
Among the activities deemed protected are political efforts, selling self-made art, fortune telling, face painting, singing and street performing.
Activities that lack free-speech protections include selling food, clothing, jewelry, soaps, oils and creams, plus yoga, exercise classes and dog training.
However, the legislation says almost any activity potentially could be eligible for free-speech protection if it is “inextricably intertwined” with political, religious or ideological messages.
The lawsuit alleges the revised ordinance is “unconstitutionally vague, which will unlawfully empower city officials and law enforcement to continue to arbitrarily enforce the law, including against buskers such as [the] plaintiffs, and deprives the public, including buskers like the plaintiffs, of constitutionally required notice of what is prohibited and what is permissible.”
The suit describes, among other things, an incident in which Dorsett said six armed officers acting on behalf of the city cited him for selling his art, arguing it was not protected by the First Amendment. The suit also cites “three or four times” when park rangers told Flores he could not perform for the same reason.
“The city of San Diego’s location-based restrictions unconstitutionally turn on the content of plaintiffs’ speech, burden more speech than necessary and fail to leave open ample alternative channels for communication,” the suit states. “[The] burdens and restrictions on plaintiffs’ protected speech resulted in a dramatic loss of revenue for the plaintiffs due to the reduced exposure to the public.”
Representatives of the San Diego city attorney’s office said they could not comment about pending litigation.
Venus Molina, chief of staff for City Councilwoman Jennifer Campbell, who shepherded the initial legislation and the revisions, previously said the expressive activity areas would “take care of the folks that are protected by the First Amendment” while also limiting the areas where they can operate.
City officials have said they were trying to strike a balance between protecting free speech and regulating the sort of commercial vending that many residents of coastal areas, including La Jolla, have complained was taking over popular parks and making them resemble street fairs.
The lawsuit defines buskers as those who “exercise their First Amendment rights … to the delight of the public while asking the public for money to their art.”
The desired judgment would declare the city’s creation of the expressive activity zones as unconstitutional; that the plaintiffs’ work is protected by the First Amendment and they have the right to operate anywhere in San Diego without fines or arrest; and that the section of the ordinance that applies to buskers is “impermissibly vague.”
In addition to an injunction forbidding enforcement of the ordinance as it applies to buskers, the suit wants the city to be forbidden from classifying busking as unprotected commercial speech or vending and from restricting busking “to areas without exposure to the public” or “discriminating” against buskers.
The plaintiffs’ attorney, Jeremiah Graham, told the La Jolla Light that the intent of the lawsuit is not to “roll back every regulation on vending; only the regulations that target those engaging in expressive activity,” which could include busking.
The plaintiffs “recognize there is an oversaturation of vending and vendors claiming First Amendment rights even though they are not doing First Amendment-protected activities,” Graham said.
He added that Dorsett worked with the city to draft the current ordinance on the impression that expressive activities such as busking would not be limited in the most recent regulations.
“William has done everything in his power to avoid taking the city of San Diego to court, but he wants to be able to busk without interference,” Graham said. “Rogelio agrees with him. That’s the goal [of this lawsuit] … to allow them and other buskers to express themselves on the street and public places without fear of citation or arrest.”
“There is a question as to whether what the city has done [in creating the expressive activity zones] is sufficient to allow people that want to speak to speak, consistent with the First Amendment,” Graham added.
Designated areas for expressive activities are the latest in a string of enforcement mechanisms the city has attempted since state Senate Bill 946 went into effect Jan. 1, 2019.
That law intends to “decriminalize” sidewalk vending by prohibiting criminal citations and penalties against sellers but allows cities to impose limited regulations if they focus on “health, safety or welfare.”
San Diego’s initial ordinance approved in March 2022 was intended to partially ban street vendors in parks and certain pedestrian-heavy areas. It requires permits and includes health and safety regulations.
In La Jolla, it aimed to block vending year-round at Scripps Park, the Children’s Pool, the Coast Boulevard boardwalk between Jenner and Cuvier streets, and on main thoroughfares in some business districts, such as the La Jolla Shores boardwalk, according to local officials. Vendors are allowed on the cross streets and side streets in those areas.
The law took full effect in most of the city in June 2022, but its restrictions focusing largely on where vendors can operate could not be enforced in coastal communities while awaiting review by the California Coastal Commission.
The commission agreed in August 2022 to withdraw its review and allow full enforcement in the coastal zone. That enforcement began Feb. 1, 2023, and is carried out in shoreline parks by rangers.
However, soon after coastal enforcement took effect, some sellers continued operating in shoreline areas like Scripps Park, citing First Amendment exceptions. That led to the creation of the expressive activity zones. ◆
