DATE: November 14, 2023
SUBJECT:
Title
VENDING AND EXPRESSIVE ACTIVITY:
A. ADOPT A RESOLUTION FINDING THE FOLLOWING BOARD ACTION EXEMPT UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), INCLUDING, BUT NOT LIMITED TO, CEQA GUIDELINES SECTIONS 15301 AND 15304;
B. CONDUCT A PUBLIC HEARING AND ADOPT AN ORDINANCE AMENDING SAN DIEGO UNIFIED PORT DISTRICT CODE ARTICLE 8, SECTION 8.05 - VENDING AND EXPRESSIVE ACTIVITY, REGULATED, TO MODIFY THE NUMBER, LOCATION, AND SIZES OF ALLOTTED SPACES IN CERTAIN DESIGNATED AREAS, AND TO UPDATE THE COMMERCIAL VENDING PERMITTING CYCLES, AND TO AUTHORIZE THE EXECUTIVE DIRECTOR TO SUSPEND OR REVOKE COMMERCIAL VENDING PERMITS FOR FAILURE TO COMPLY WITH THE DISTRICT’S ORDINANCE OR THE TERMS OF THE PERMIT
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EXECUTIVE SUMMARY:
In February 2023 staff updated Port Code 8.05 to (1) authorize issuance of a temporary commercial use permit for commercial vendors to operate in 36 allotted spaces designated for commercial activity along the Embarcadero, (2) update the District’s time, manner, and place restrictions for vending and expressive activity, and (3) clarify penalties and enforcement procedures for individuals found in violation of the District’s vending and expressive activity regulations. At the February 14, 2023 meeting, the Board directed staff to return in fall 2023 to report on the initial implementation of these changes to Port Code 8.05 and evaluate the effectiveness of District’s updated vending and expressive activity regulations.
At the October 10, 2023 Board meeting, staff reported that the Port Code 8.05 update was generally successfully, but acknowledged there was room for improvement and presented recommendations to modify the program. Based on Board direction and feedback from the October 10, 2023 meeting, staff’s recommendations have been updated to include the following additional modifications:
• Increase the commercial vending permit cycle from six (6) months to one (1) year;
• Decrease the amount of time commercial and expressive vendors can leave their equipment unattended from three (3) hours to two (2) hours;
• Authorize staff to suspend and/or revoke commercial vending permits for failure to meet the minimum use and occupancy standards identified in the terms and conditions of the permit. For the next permitting cycle, staff recommends requiring commercial vendors to vend at least five (5) hour per day for a minimum of 16 days every month. Staff will evaluate the effectiveness of the five (5) hour and 16-day minimum use and occupancy standard during the next permit cycle (e.g., 2024 calendar year) and will make any necessary adjustments to the subsequent permitting cycle beginning in January 2025. Staff would monitor and manage the minimum use and occupancy requirements by requiring commercial vendors to check-in/check-out using a software application on their mobile phone. For more information, see item 5 under Proposed Updates to Port Code Section No. 8.05.
As discussed at the October 10, 2023 Board meeting, the District’s vending & expressive activity regulations (February 2023) have generally been successful because they substantially advanced and/or attained the four program goals established earlier this year. It’s important to note that stakeholder groups had varying opinions and communicated different concerns about the Districts vending and expressive activity regulations.
Staff is recommending the following refinements to the program based on the District’s Field Survey (Attachment A - Field Survey Summer 2023: Vending & Expressive Activity), the District’s Stakeholder Email Survey (Attachment B - Email Survey August 2023: Vending & Expressive Activity), and Board direction from the October 10, 2023 Board meeting:
1. Adjust the Allotted Spaces for vending and expressive activity as follows:
a. Increase the number of Allotted Spaces in Designated Area 4 (on wooden deck near Midway Museum) from 12 to 17, adding two (2) additional commercial spaces and three (3) additional expressive spaces.
b. Decrease the total number of Allotted Spaces from 77 to 67 along the Embarcadero.
c. Reduce the number of Allotted Spaces in Designated Areas 7 and 8 (behind Seaport Village) from 31 to 15.
d. Modify Designated Area 3 (between the Portside Pier restaurant and the B Street Cruise Ship Terminal) to include eight (8) commercial spaces and four (4) expressive spaces, formerly six (6) commercial spaces and six (6) expressive spaces.
e. Reduce the size of spaces in Designated Area 1 (near the Grape Street Pier) from 10ft x 10ft to 6ft x 8ft and modify them to allow four (4) expressive spaces and two (2) commercial spaces, formerly three (3) commercial spaces and three (3) expressive spaces.
2. For the first commercial vending permitting cycle that began on May 1, 2023, extend the Temporary Commercial Use Permits from a November 30, 2023 end date to a December 31, 2023 end date.
3. For all subsequent commercial vending permitting cycles, extend the Temporary Commercial Use Permits from six (6) months to approximately one (1) year.
4. Reduce the time commercial and expressive vendors can leave their equipment unattended from three (3) hours to two (2) hours.
5. Require commercial vendors to prominently display their District issued permit at all times while vending.
6. Authorize staff to suspend and/or revoke commercial vending permits for failure to meet the minimum use and occupancy standards identified in the terms and conditions of the permit.
7. Non-substantive edits to align the ordinance with current administrative practices or requirements.
(Attachment C - Proposed Amendments to Unified Port District Code Section 8.05 Strike-out / Underline).
Between October 2, and October 29, 2023, the Parks & Recreation department received 158 commercial vending applications for the next commercial vending permit cycle. If the Board adopts staff’s recommendation, staff will conduct an Opportunity Drawing on November 16, 2023 to assign 35 commercial vendors an Allotted Space, as well as to select an additional 40 applicants to serve as “alternates”. Staff will work to issue all permits effective January 5, 2024, when the next commercial vending permit cycle is scheduled to begin.
RECOMMENDATION:
Recommendation
Vending and Expressive Activity:
A. Adopt a resolution finding the following Board action exempt under the California Environmental Quality Act (CEQA), including, but not limited to, CEQA Guidelines Sections 15301 and 15304;
B. Conduct a public hearing and adopt an ordinance amending San Diego Unified Port District Code Article 8, Section 8.05 - Vending and Expressive Activity, Regulated, to modify the number, location, and sizes of allotted spaces in certain designated areas, and to update the commercial vending permitting cycles, and to authorize the executive director to suspend or revoke commercial vending permits for failure to comply with the District’s ordinance or the terms of the permit.
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FISCAL IMPACT:
There is no fiscal impact caused by approval of this action.
Compass Strategic Goals:
Vending and expressive activity can enliven public spaces like those on District tidelands by contributing to the vibrancy and excitement of the waterfront, while providing economic opportunities for micro-entrepreneurs. When done legally and in proper balance with the safety, access, and recreational needs of the public in mind, vending and expressive activity makes for an entertaining and stimulating environment for visitors and locals along San Diego Bay. This agenda item supports the following Strategic Goal(s).
• A Port that is a safe place to visit, work and play.
• A Port that the public understands and trusts.
• A vibrant waterfront destination where residents and visitors converge.
• A Port with a healthy and sustainable bay and its environment.
DISCUSSION:
Background
In response to the health, safety, and general welfare concerns associated with unregulated vending along the Embarcadero in calendar year 2022, the Board amended Port Code Sect. No. 8.05 - Vending & Expressive Activity Regulated (SDUPD 8.05) in February 2023, as follows:
• Increased the total number of Allotted Spaces from 68 spaces (Port Code Sect. 8.05, December 2019) to 77 spaces (Port Code Sect. 8.05, February 2023) along the Embarcadero in San Diego.
• Allowed commercial vending in 36 of the 77 Allotted Spaces provided they obtained a Temporary Commercial Use Permit from the District’s Parks & Recreation department, which would be valid for a six (6) month period, with the exception of the first permit cycle, which shall be valid for seven (7) months.
• Instituted an opportunity drawing to randomly select commercial vendors because the number of interested vendors (approximately 120 applicants) exceeded the 36 commercial spaces available.
• Reduced the total number of Allotted Spaces designated for expressive activity from 77 spaces to 41 spaces and maintained that expressive activity spaces would continue to be available on a first-come, first-served basis.
• Established outdoor noise limitations for all vending and expressive activity.
• Clarified the District’s penalties and enforcement procedures.
These amendments recognized the right of free speech as guaranteed under the First Amendment, but instituted reasonable time, place, and manner restrictions to ensure health, safety, and general welfare standards were maintained.1 At the February 14, 2023 Board Meeting, the Board directed staff to evaluate the effectiveness of SDUPD 8.05 and to return to the Board with recommendations in the fall 2023.
Program Evaluation
Over the past several months, staff conducted multiple site visits and had multiple discussions with key stakeholders to better understand the effectiveness of the updated regulations. Additionally, staff conducted a field survey to look at how often the 77 spaces were used over a 3-month period (June 1, 2023 - August 31, 2023) and sent an email survey (August 24, 2023 - August 31, 2023) to key stakeholder groups. These efforts were used to assess SDUPD 8.05 and to help inform staff’s recommendations.
In conjunction with the actions discussed above, staff evaluated SDUPD 8.05 within the context of the four (4) program objectives listed below:
1. Provide increased economic opportunity. SDUPD 8.05 increased economic opportunity by permitting thirty-six (36) commercial vendors to sell food and merchandise along the Embarcadero in the City of San Diego. Prior to February 2023, commercial vending was handled exclusively by a single vendor (Quality Coast), that managed eight (8) commercial vending stands on the Embarcadero as part of a stand-alone real estate agreement that expires in January 2024. This arrangement limited economic opportunities for other commercial vendors. In addition, the District partnered with the Logan Heights Community Development Corporation (LHCDC) between February 2023 and May 2023 to conduct outreach and provide technical assistance to more than 150+ sidewalks vendors and micro-entrepreneurs at high-traffic areas along the Embarcadero (Attachment D, LHCDC Sidewalk Vending Outreach & Education Final Report Quarterly Report February 2023 - May 2023).
Based on the District’s 3-month field survey, the 36 commercial vending spaces were occupied 62% of the days surveyed (Attachment A, Table 9). Additionally, 55% of the commercial vendors that completed the August 2023 Email Survey agreed with the statement, “the District’s Vending & Expressive Activity regulations improved your ability to enjoy, operate or conduct business along the Port’s waterfront” (Attachment B, Table 3A).
As noted earlier, spaces allocated for expressive activity were reduced from 77 spaces to 41 spaces in February 2023 and 83% of expressive vendors strongly disagreed that the updated regulations improved their ability to enjoy, operate or conduct business along the Port’s waterfront (Attachment B, Table 3A). However, the Summer 2023 Field Survey found that the 41 expressive vending spaces were only occupied 39% of the time (Attachment A, Table 9). This suggests that even though the total number of expressive spaces decreased following the Board’s amendments to SDUPD 8.05 in February 2023, there were still plenty of spaces and ample opportunities for buskers, artists, and people engaged in free speech to conduct expressive activity. Based on informal conversations and written comments provided by the expressive vendors, their dissatisfaction may be because they believe that there are too few expressive vending spaces in certain preferred locations and/or because of enforcement of SDUPD 8.05, which included regulating their activity to a 10ft x 10ft or smaller-sized footprint (Attachment B, Table 6B).
Finally, it should also be noted that only 33% of Port tenants agreed that the SDUPD 8.05 improved their ability to enjoy, operate or conduct business along the Port’s waterfront, whereas 43% of Port tenants disagreed with that statement (Attachment B, Table 3A). In response to this feedback, and other data points, staff recommends reducing the number of Allotted Spaces in Designated Areas 7 and 8, which are adjacent to Seaport Village, from 31 spaces to 15 spaces. To provide adequate opportunities for commercial and expressive vendors to reach their target audience, staff recommends increasing the number for spaces in Designated Area 4 (on the wooden deck by the Midway Museum), from 12 spaces to 17 spaces, where the highest occupancy rates were observed in the Summer 2023 Field Survey (87% occupancy rate in commercial spaces and a 92% occupancy rate in expressive spaces). (Attachment A, Table 4). It is noteworthy that six (6) of the eight (8) expressive activity spaces in Designated Area 8 had a 0% occupancy rate for the entire duration of the survey. (Attachment A, Table 8).
2. Activate the District’s waterfront by providing a broad range of commercial goods and expressive activities. SDUPD 8.05 maintained a healthy presence of expressive activity along the Embarcadero in certain areas, while expanding economic opportunities for many commercial vendors. As mentioned earlier, the 36 commercial vending spaces were occupied 62% of the days surveyed. These commercial vendors sold hats, belts, jewelry, handbags, ceramics, clothing, eyewear, toys, posters, as well as ice-cream and other pre-packaged food products.
However, increased activation of commercial and expressive vending was not observed equally in all areas. For example, the area along the Embarcadero south of the Portside Pier restaurant and north of the B Street Cruise Ship Terminal (Designated Area 3) had six (6) commercial vending spaces and six (6) expressive activity spaces. Although the six (6) commercial vending spaces were occupied 75% of the time on average, the six (6) expressive activity spaces were only occupied 17% of the time on average. (Attachment A, Table 3). For these reasons, staff recommends updating SDUPD 8.05 as part of this amendment as shown in the proposed maps incorporated into the updated ordinance. This includes designating eight (8) spaces for commercial vending and four (4) spaces for expressive activity in Designated Area 3.
3. Ensure health, safety and general welfare standards are maintained. Following the District’s vending & expressive activity regulations update in February 2023, the District implemented several changes that improved the health, safety, and welfare of the general public. For example, the updated regulations instituted a permitting system for commercial vendors that allowed staff to ensure all permitted food vendors had a current and valid Mobile Food Facility Health Permit as required by the San Diego County Department of Environmental Health and Quality. It also allowed the District to verify that all permitted commercial vendors had a valid business license from the City of San Diego and required them to obtain a certificate of insurance naming the District as additionally insured party for the duration of the permit. Finally, the updated regulations clarified the Districts penalties and enforcement procedures. Between May 1, 2023 and September 30, 2023, 52 written warnings and 65 administrative citations have been issued by the Harbor Police’s Community Service Officers (CSOs)2. These enforcement efforts have discouraged unauthorized commercial vending along the waterfront and has helped ensure expressive activity was done in compliance with the Districts' time, place, and manner restrictions (Attachment E - Summary of Vending & Expressive Activity Enforcement 05/01/23 through 9/30/23).
Additionally, of the 81 written comments collected as part of the August 2023 Email Survey, only three (3) respondents identified health and safety issues as a concern. In contrast, several comments expressed concern over the public’s use and enjoyment of the waterfront, as well as the adverse visual impacts associated with on-going vending and expressive activity (Attachment B, Table 6A through 6E).
4. Reduce negative, adverse, secondary impacts associated with unregulated commercial vending and expressive activity: Many of the adverse impacts associated with unregulated vending began to diminish shortly after enforcement started in early May 2023. For example, several of the District’s staff were personally thanked by members of the public on the wooden deck just south of the Midway Museum (Designated Area 4) for “cleaning up” the area. More specifically, people noted that the views to the bay have improved, there is less congestion and more maneuverability in the area, and that the overall environment had less trash and looked nicer. Several written comments from commercial vendors, Port staff, and the general public in the August 2023 Email Survey also acknowledged that the updated regulations improved conditions along the waterfront (Attachment B, Table 6A, 6C, and 6D). In fact, three out of the five stakeholder groups surveyed either agreed or strongly agreed with the statement that, “The updated Vending and Expressive Activity Regulation - SDUPD Code 8.05 has improved the general public's experience along the Port's waterfront.” Port tenants were evenly split on this statement, whereas 83% of expressive vendors strongly disagreed with the statement (Attachment B, Table 3A). See summary data below:
• Port staff (61% Agreed or Strongly Agreed)
• Commercial vendors (58% Agreed or Strongly Agreed)
• General public (55% Agreed or Strongly Agreed)
• Port Tenants (40% Agreed or Strongly Agreed, and 40% Disagreed / Strongly Disagreed)
• Expressive Vendors (83% Strongly Disagreed)
These different stakeholder groups identified some of the same adverse impacts associated with commercial vending and expressive activity in their written comments. For example, all the stakeholder groups, except expressive vendors, commented that there should be more enforcement. Similarly, all the stakeholder groups, except expressive vendors, had at least one comment suggesting that vending and expressive activity degrades the quality of the environment by making the area “look cheap.” Finally, commercial and expressive vendors both acknowledged there are still arguments over the use of vending spaces and that not all spaces are viable to do business. These written comments are discussed in more detail in the next section.
Proposed Updates to Port Code Section No. 8.05 - Vending and Expressive Activity Regulated
Following staff’s presentation and public comments from 20 individuals at the October 10, 2023 Board meeting, the Board directed staff to (a) increase the commercial vending permit cycle from six (6) months to one (1) year, (b) decrease the amount of time commercial and expressive vendors can leave their equipment unattended from three (3) hours to two (2) hours, and (c) develop a way of increasing the overall use and occupancy of the Districts commercial vending spaces. Based on Board direction, as well as the data and information discussed above, staff recommends amending Port Code Section 8.05 Vending and Expressive Activity to reflect the following modifications and refinements:
1. Reduce the total number of commercial and expressive vending spaces from 77 spaces to 67 spaces along the Embarcadero.3 In an effort to improve the visual quality of the District’s public parks and open spaces, as well as the general public’s experience along the waterfront, staff recommends reducing the total number of Allotted Spaces for both commercial vending and expressive activity (Attachment F, Embarcadero, San Diego, page 1). Of the 129 respondents who participated in the August 2023 Email Survey, 40% of them noted that the number of commercial vending spaces should be reduced and 44% of them said that the number of expressive activity spaces should be reduced. Additionally, 34% of survey respondents noted that the number of commercial and expressive vending spaces should stay the same. These values, in conjunction with written comments indicating that commercial and expressive vending degrade the quality of the environment, suggest that there is support to reduce the number of commercial and expressive vending spaces. Making these reductions and modifications deliberately and intentionally, in consideration of the field survey and email survey data points, provide an opportunity to enhance vending and expressive activity for multiple stakeholder groups, as summarized below. (Attachment F - Proposed Allotted Spaces for Vending & Expressive Activity [November 2023] - Updated Maps / Clean Version).
Wooden Deck near the Midway Museum (Designated Area 4): Commercial and expressive vendors both indicated that they wanted additional spaces for their respective activities. 81% of commercial vendors wanted an increase in the number of commercial vending spaces, and 100% of expressive vendors reported that they believe the number of expressive spaces should be increased (Attachment B, Bar Chart 4 and Bar Chart 5). Further, both groups have indicated that some of the Allotted Spaces were not viable. To address these concerns and provide adequate opportunities for commercial and expressive vendors to reach their target audience, staff recommends increasing the number of spaces in this area from 12 spaces to 17 spaces4 (Attachment F, Designated Area 4). This area had the highest occupancy rates anywhere on the Embarcadero, which included an 87% occupancy rate for commercial spaces and an 92% occupancy rate for expressive spaces (Attachment A, Table 4).
Embarcadero Marina Park North Near Seaport Village (Designated Areas 7 and 8): 43% of Port tenants disagreed that SDUPD 8.05 improved their ability to enjoy, operate, or conduct business along the waterfront (Attachment B, Table 3A). Based on the open-ended comments in the email survey, it appears that many of these comments came from Seaport Village tenants. In response, staff recommends reducing the number of Allotted Spaces near the entrance to Embarcadero Marina Park North and adjacent to Seaport Village from 31 spaces to 15 spaces. These reductions are expected to enhance the public’s views of the bay from the promenade and reduce congestion in the area. This recommendation also involves eliminating eight (8) expressive vending spaces that were never occupied during the entire three-month field survey period (Attachment F, Designated Areas 7 and 8).
Promenade between Portside Pier Restaurant and B Street Cruise Ship Terminal (Designated Area 3): Field survey observations indicated that the six (6) commercial vending spaces were occupied 75% on the days surveyed (on average), but the six (6) expressive spaces were only occupied 17% on the days surveyed (on average). (Attachment A, Table 3). For these reasons, staff recommend updating SDUPD 8.05 as part of this amendment, to designate eight (8) spaces for commercial vending and four (4) spaces for expressive activity (Attachment F, Designated Area 3).
It should be noted that observational data showed that in totality commercial vending spaces were occupied about 62% of the days surveyed (on average) and expressive vending spaces were occupied approximately 39% of the days surveyed (on average). (Attachment A, Table 9). These values suggest that there will still be adequate opportunities for commercial vending and expressive activity even if the total number of 77 spaces on tidelands are reduced to 67 spaces (13% reduction).
2. Reduce the size of the six (6) spaces near the Grape Street Pier (Designated Area 1) from 10ft x 10ft to 6ft x 8ft and modify them to allow four (4) expressive spaces and two (2) commercial spaces. Staff recommends reducing the size of the spaces in this area to attain greater consistency with the size of other spaces in areas where the width of the promenade is relatively narrow. Staff recommend replacing one (1) commercial space with one (1) expressive space to accommodate free speech activities given its proximity to the County Administration Building across the street (Attachment F, Designated Area 1).
3. Extend the duration of Temporary Commercial Use Permits for Commercial Vending.
A. For the first permitting cycle that started on May 1, 2023, extend the end date from November 30, 2023 to December 31, 2023. This change provides the Port’s 36 existing commercial vendors one (1) additional month to vend on Port tidelands, which will give them additional time to make alternative arrangements if they are not selected in the November 16, 2023 Opportunity Drawing. It also enables the Port to align the commercial vending permit cycles with the beginning of the calendar year.
B. Extend Temporary Commercial Use Permits for Commercial Vending from six (6) months to approximately one (1) year. Several commercial vendors requested that the permit period be extended to one year to help them better manage their businesses, including but not limited to, issues associated with inventories, cash flow, and other supply chain dynamics.
4. Reduce the time commercial and expressive vendors can leave their equipment unattended from three (3) hours to two (2) hours. This change provides flexibility for the commercial and expressive vendors working in the area, while trying to help reduce competition for the use of first-come first-served spaces in high-demand areas. Over the duration of the first permit cycle, staff observed, and received reports of people setting up in a space and then leaving it unattended for the three (3) hours or more. This practice takes away opportunities from other expressive vendors who may want to use the space during that time.
5. Require commercial vendors to prominently display their District issued permit at all times while vending. This change will discourage unpermitted commercial vendors from operating on Port Tidelands and it will help the District’s Community Service Officers (CSOs) more easily identify commercial vendors that do not have a valid permit from the District and enforce SDUPD 8.05.
6. Authorize staff to suspend and/or revoke commercial vending permits for failure to meet the minimum use and occupancy standards identified in the terms and conditions of the permit. The District’s three (3) month Field Survey found that the 36 commercial vending spaces were occupied 62% of the days surveyed (Attachment A, Table 9). In addition, the District has received complaints that not all of the Allotted Spaces are being used on a regular basis. At the October 10, 2023 Board meeting, the Board directed staff to develop a way of increasing the overall use and occupancy of the Districts commercial vending spaces.
Staff recommends incorporating minimum use and occupancy standards in the Temporary Commercial Use Permit, and if the permittee fails to meet those minimum standards, the District could suspend and/or revoke their permit. The minimum use and occupancy standards would be identified in the terms and conditions of the permit that the applicant would need to sign and agree to prior to receiving their approved permit. Following the suspension and/or revocation of a permit for a commercial vending space, staff could issue a new Temporary Commercial Use Permit to an “alternate” commercial vendor that was selected during the District’s Opportunity Drawing. The new Temporary Commercial Use Permit would be for the remaining period of the permit cycle.
For the next permitting cycle beginning in January 2024, staff recommends requiring commercial vendors to vend at least five (5) hour per day for a minimum of 16 days every month (e.g., 4 days a week). These minimum use and occupancy standards seek to attain a minimum level of activation on District tidelands, while recognizing that many commercial vendors desire some level of flexibility.
Compliance with these standards would be managed and monitored by Parks & Recreation staff using a 123Survey application whereby the vendors would have to check-in and check-out each day the work using their mobile phone/device. Staff would monitor the hourly use and daily occupancy of all 35 commercial vendors. Any permittee that fails to meet the minimum use and occupancy standards would be contacted by staff and notified the first week of each month. If the permittee fails to meet the minimum use and occupancy standards, they are entitled to one (1) written warning, before staff is authorized to suspend and/or revoke their permit. Permittees would be able to appeal the decision to suspend or revoke their permit, in accordance with the provisions in SDUPD 8.05.
Staff would work with permittees and assess their unique situation on a case-by-case basis, before suspending or revoking a Temporary Commercial Use Permit. For example, if a permittee experienced health-related issues or if there were other temporary circumstances impacting a permittee’s ability to vend, staff may temporarily suspend their permit and not revoke it.
Staff Response to Email Survey Comments, Questions, and/or Requests
• Enforcement: Several survey respondents from multiple stakeholder groups asked for more enforcement of the Port Code 8.05 Regulations. Harbor Police is currently in the process of hiring more CSO’s with the goal that they would be able to provide additional education and enforcement coverage once they have been trained.
• Six-month Permit: Four (4) commercial vendors reported that the six-month permit time is too short. Based on public testimony and Board direction at the October 10, 2023 Board meeting, staff recommends increasing the duration of commercial vending permits from six (6) months to one (1) year.
• Parking Request: Four (4) survey respondents asked the Port to provide parking for commercial and expressive vendors. Staff does not support providing parking passes to commercial or expressive vendors because parking is a scarce commodity and is already in high-demand along the waterfront.
• Loading / Unloading Zone Requests: Two (2) survey respondents asked staff to provide exclusive areas for commercial and expressive vendors to load and unload adjacent to Designated Areas. Staff does not support designating a curb for commercial and expressive vendors to load/unload because there are no feasible areas or free space available for this purpose in the areas where vending and expressive activity is allowed. Nearby curb areas are needed for either parking and/or emergency service vehicles.
• Rotating Commercial Vendors: Following the October 10, 2023 Board Meeting, an expressive vendor contacted staff and suggested rotating commercial vendors three times a year to provide all of the commercial vendors the opportunity to vend in one of the more desirable locations. Under this scheme, staff would characterize the eight (8) designated areas as “transitional”, “good”, and “best” and would rotate commercial vendors between these three areas every four (4) months. Three Opportunity Drawings would be conducted every year so that Group A would begin their four-month cycle on January 1st, Group B would begin their four-month cycle on May 1st, and Group C would begin their four-month cycle on September 1st. In the programs first year, Quality Coast would be given an opportunity to enter into a stand-alone real estate agreement for spaces that were not assigned. This process would be repeated year over year. (For more information, see Attachment G - Rotating Commercial Vendors Schedule).
Although this suggestion has the potential to provide a greater variety of commercial merchandise to the public in different designated areas, it carries a heavy administrative burden and could complicate enforcement efforts. Furthermore, under this scheme commercial vendors would no longer be able to identify their preferred Designated Area as part of the District’s Opportunity Drawing because all commercial vendors would be rotated throughout the year. At this time, staff is not supportive of this suggestion.
• Mandatory Start Time and Un-used Commercial Spaces: Following the October 10, 2023 Board Meeting, a commercial vendor contacted staff and suggested that the District require all commercial vendors to start vending by a specific time (for example, 11am), and if the space is unoccupied by that time, “alternate” commercial vendors could use that space. Under this scheme alternate commercial vendors would need to pay the permit fee, acquire insurance, and obtain a Temporary Commercial Use Permit so they could essentially remain on standby.
This suggestion has the potential to result in arguments and confrontations between the original permitted vendor and alternate vendor(s) that want to use the space. It also complicates enforcement efforts as it will be difficult for the Community Service Officers to know when the various vendors actually arrived to the commercial space. At this time, staff is not supportive of this suggestion.
Concluding Remarks and Next Steps
Commercial vending and other expressive activities can help activate public spaces and contribute to the vibrancy and excitement of the District’s waterfront. When properly regulated, the adverse, secondary impacts associated with commercial vending and expressive activity can be reduced and health, safety, and general welfare standards can be achieved. In turn, commercial and expressive vendors can help create an entertaining and stimulating environment for visitors and residents along San Diego Bay. The proposed amendments seek to further clarify and refine the District’s vending and expressive activity regulations based on observational data and stakeholder feedback over this past summer (June 1, 2023 to August 31, 2023).
The Parks & Recreation department has received 158 commercial vending applications for the next permitting cycle. If the Board adopts staff’s recommendation to end the first commercial vending permit cycle on December 31, 2023, staff recommends implementing the next commercial vending permit cycle as outlined below:
• Thursday, November 16, 2023: Staff will conduct an Opportunity Drawing to assign Allotted Spaces to eligible commercial vending permit applicants.
• Friday, November 17, 2023 through Thursday, December 15, 2023: Staff will work with selected applicants and issue Temporary Commercial Activity Permits for the next commercial vending permit cycle. The 2024 cycle is scheduled to be in effect from Friday, January 5, 2024 through Tuesday, December 31, 2024.
General Counsel’s Comments:
The Office of the General Counsel has reviewed and approved this agenda, proposed resolution and ordinance, as presented, as to form and legality.
Environmental Review:
The proposed Board actions, including without limitation, amending San Diego Unified Port District Code Article 8, Section 8.05 - Vending and Expressive Activity, Regulated, are Categorically Exempt pursuant to California Environmental Quality Act (CEQA) Guidelines Sections 15301 (Existing Facilities) and 15304 (Minor Alterations to Land) and Sections 3.a. and 3.d.(6) of the District’s Guidelines for Compliance with CEQA because the project would consist of amendments to the Port Code to improve the commercial vending and expressive activity program along the waterfront involving no expansion of use beyond that previously existing. The District has determined none of the six exceptions to the use of a categorical exemption apply to this project (CEQA Guidelines Section 15300.2).
The proposed Board actions comply with Section 87 of the Port Act, which allows for the construction, reconstruction, repair, maintenance, and operation of public buildings, public assembly and meeting places, convention centers, parks, playgrounds, bathhouses and bathing facilities, recreation and fishing piers, public recreation facilities, including, but not limited to, public golf courses, and for all works, buildings, facilities, utilities, structures, and appliances incidental, necessary, or convenient for the promotion and accommodation of any of those uses. The Port Act was enacted by the California Legislature and is consistent with the Public Trust Doctrine. Consequently, the proposed Board actions are consistent with the Public Trust Doctrine.
The proposed Board actions are considered excluded development pursuant to Sections 8.a. (Existing Facilities) and 8.d.(5) (Minor Alterations to Land) of the District’s Coastal Development Permit Regulations because the project would involve amending the Port Code to improve the commercial vending and expressive activity program and the general public’s experience along the waterfront that would involve a negligible expansion of use beyond that previously existing. If the Board approves this action, District staff would notify California Coastal Commission (CCC) staff in accordance with Coastal Act Section 30717. The approval would become effective after the 10th working day after notification to CCC staff, unless an appeal is filed with the CCC within that time frame.
Diversity, Equity, and Inclusion Program:
The Logan Heights Community Development Corporation report (Attachment D) includes the following excerpt on outreach and businesses served:
|
# of total businesses served with educational resources and 1:1 hands-on assistance such as workshops and trainings |
185 unduplicated sidewalk vendors |
|
# of BIPOC-owned businesses served |
162 |
|
# of Woman-owned businesses served |
120 |
|
# of businesses served operating in low- and moderate-income (LMI) census tracts |
175 |
|
# of workshops/webinars held |
6 |
|
# of unique businesses engaged with in-person outreach |
250 unduplicated sidewalk vendors |
PREPARED BY:
Larry Hofreiter
Director, Parks & Recreation
Erica Nogueira
Program Manager, Parks & Recreation
Sofia Bayardo
Project Manager, Parks & Recreation
Attachment(s):
Attachment A: Summer 2023 Field Survey: Vending & Expressive Activity
Attachment B: August 2023 E-mail Survey: Vending & Expressive Activity
Attachment C: Proposed Amendments to Unified Port District Code Section 8.05 Strike-out / Underline
Attachment D: LHCDC Sidewalk Vending Outreach & Education Final Project Report (February 2023 - May 2023)
Attachment E: Summary of Vending & Expressive Activity Enforcement 05/01/23 through 9/30/23
Attachment F: Proposed Allotted Spaces for Vending & Expressive Activity (November 2023) - Updated Maps / Clean Version
Attachment G: Rotating Commercial Vendors Schedule
1 In addition to the Findings and Purposes identified in Port Code Sect. No. 8.05 Vending and Expressive Activity (February 2023), staff documented several specific examples associated with unregulated vending in calendar year 2022 that threatened the health, safety, and welfare of the general public. Examples include, but are not limited to, unsanitary conditions associated with unpermitted food vending, excessive numbers of vendors obstructing ingress and egress along public walkways, physical altercations between vendors fighting over space, an uncontrolled grease fire that resulted in injury to a Port staffer, and complaints from people that vending setups are unsightly, diminish the visual quality of the environment, and obstruct views to the bay. For more information, please see Public Hearing Agenda Item #7 from the February 14, 2023 Board of Port Commissioners meeting File #2023-0032.
2 Of the sixty-five (65) administrative citations that have been issued by the Harbor Police CSOs between May 1, 2023 and September 30, 2023, thirteen (13) have been appealed, of which only two (2) have been reversed on administrative appeal. Three (3) have been further appealed to traffic court, of which two (2) were upheld and one (1) was reversed. Fifty-four (54) citations remain open, six (6) have been paid, three (3) have been dismissed, and two (2) are pending an administrative hearing.
3 In addition to the Embarcadero in the City of San Diego, the District’s Vending and Expressive Activity regulations (February 2023) recognized three (3) commercial spaces and two (2) expressive spaces at Bayside Park in Chula Vista, and two (2) commercial spaces and one (1) expressive space at Tidelands Park in Coronado. Staff is not proposing any changes in these areas, so these spaces are proposed to be sequentially numbered from space number 68 through 76 as part of this proposed amendment.
4 The District’s current vending and expressive activity regulations recognized Quality Coast’s four (4) commercial spaces in Designated Area 4 (near the Midway Museum) that were authorized as part of a separate 5-year Tidelands Use Occupancy Permit Agreement that was set to expire on January 31, 2024. Staff has notified Quality Coast that they will be terminating this agreement on December 31, 2023 (one month early) and is recommending these four spaces are reassigned as two (2) commercial vending spaces and two (2) expressive activity spaces. Staff is also recommending adding one (1) additional expressive activity space on the grass based on the popularity of this area.