DATE: December 10, 2019
SUBJECT:
Title
CONDUCT PUBLIC HEARING AND ADOPT AN ORDINANCE AMENDING SAN DIEGO UNIFIED PORT DISTRICT CODE ARTICLE 8, SECTION 8.05 - VENDING AND PERFORMING, REGULATED - TO CLARIFY THE INFORMATION ABOUT THE SUITABILITY OF SPECIFIC PUBLIC LOCATIONS OF THE TIDELANDS FOR CONDUCTING VENDING AND PERFORMING, AND TO REVISE THE DESIGNATED AREAS AND ALLOTTED SPACES FOR AUTHORIZED VENDING AND PERFORMING CONSISTENT WITH NEWLY ENACTED GOVERNMENT CODE SECTION 51036, ET SEQ.
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EXECUTIVE SUMMARY:
The purpose of this agenda item is to request that the Board conduct a public hearing and adopt an ordinance amending Section 8.05 of the Unified Port District Code, which addresses vending and performing on the District Tidelands. The proposed amendments to the ordinance have been drafted to accomplish two objectives: (1) to align the ordinance language with that of the recently passed Senate Bill 946 - called the Safe Sidewalk Vending Act - that imposes limits on how local authorities may regulate the vending of food or merchandise on a public sidewalk or other pedestrian path; and (2) to respond to the ongoing development of the downtown waterfront by revising the specific locations on the Tidelands in which authorized vending and performing may occur.
RECOMMENDATION:
Recommendation
Conduct a public hearing and adopt an ordinance amending San Diego Unified Port District Code Article 8, Section 8.05 - Vending and Performing, Regulated - to clarify the information about the suitability of specific public locations of the Tidelands for conducting vending and performing, and to revise the Designated Areas and Allotted Spaces for authorized vending and performing consistent with newly enacted Government Code Section 51036, et seq.
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FISCAL IMPACT:
This agenda item has no fiscal impact.
Compass Strategic Goals:
Vendors and performers enliven public spaces like those on District Tidelands, contributing to the vibrancy and excitement of the waterfront. When done legally and in proper balance with the needs of the public for safety, access and enjoyment of open space, vending and performing make for an entertaining and stimulating environment for visitors and locals along San Diego Bay.
By providing a balanced approach to vending and performing, 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:
San Diego Unified Port District Code Article 8, Section 8.05 (Vending Ordinance) has existed since the District’s inception in 1963. In its original form, this code section was a brief single paragraph of language prohibiting any commercial vending on the Tidelands without a permit from the District.
As development and enhancement of the commercial and recreational assets of the Tidelands has progressed over the District’s first five decades, San Diego Bay has attracted continually increasing numbers of people. Concurrent with this growth in visitors has been an increase in vending, performance and other expressive activity on the more heavily traveled public walkways, plazas and various open spaces on the waterfront by persons wishing to draw the attention of the substantial numbers of pedestrians traversing these areas.
In 2012, the Board approved amendments to the Vending Ordinance to ensure clarity and understanding of what constitutes authorized vending and performing activity and provide regulations regarding the time, place and manner of vending and performing on the District Tidelands. These amendments also included newly established zones for authorized vending and performing called Designated Areas, each of which consists of a number of Allotted Spaces. The Designated Areas were identified with the goal of balancing the right of persons engaging in First Amendment protected activity to have access to public space with the need for safe enjoyment of the public Tidelands by visitors and locals.
In 2014, the Board approved another amendment to the Vending Ordinance that eliminated one Designated Area that was experiencing pedestrian congestion that was aggravated by the vending and performing activity occurring there.
Between 2014 and the present, changes to public infrastructure and new commercial development, along with recently passed legislation - Senate Bill (SB) 946 - have brought about the need for additional amendments to the Vending Ordinance.
In 2018, the California State Legislature passed SB 946, called the Safe Sidewalk Vending Act. The purposes of the SB 946 are to remove several restrictions that local authorities may impose on commercial vending. Specifically, SB 946 limits the regulation of vending and performing by local authorities to restrictions that are directly related to objective health, safety, or welfare concerns for citizens; and limits punishment for vending-related violations to civil fines, effectively decriminalizing unauthorized vending in California.
Currently, SB 946 applies to cities and counties, but does not expressly apply to port districts. However, staff recommends an update at this time for three reasons. First, for laws that initially do not apply to port districts, the Legislature at times has amended the laws at a later date to cover port districts. Accordingly, this update anticipates the Legislature’s subsequent amendment to include port districts under SB 946. Second, while SB 946 does not apply to Tidelands, its passage caused confusion among vendors and performers and bringing the District’s ordinance in alignment with the new law will lessen or eliminate this confusion. Third, consistent with the First Amendment, this update refines provisions of the ordinance that relate to the legal identification of and distinction between commercial and non-commercial speech.
Under SB 946, a local authority may adopt requirements regulating the time, place, and manner of sidewalk vending in a park owned or operated by a city or county if the requirements fulfill any of the following criteria:
• Directly related to the objective health, safety, or welfare concerns; or
• Necessary to ensure the public’s use and enjoyment of natural resources and recreational opportunities; or
• Necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park.
SB 946 provides a non-exhaustive list of possible regulations, including those concerning locations, hours of operation, sanitation, sidewalk access, health and vendor permitting, compliance with other generally applicable laws, and interference with other special events or permitted activities. Any vending-related regulations enacted by a local authority must be consistent with state law.
SB 946 allows local authorities to prohibit stationary sidewalk vendors (as opposed to roaming sidewalk vendors) from vending in a park if the operator of the park has signed an agreement for concessions that exclusively permits the sale of food or merchandise by the concessionaire. Given that the District has in place an agreement with Quality Coast, a local company, to vend food and merchandise in parks and public spaces on the Tidelands that include Broadway Pier, B Street Pier, Tuna Harbor Park, Coronado Tidelands Park, Chula Vista Bayside Park, Cesar Chavez Park, and Ruocco Park, the District has the ability to prohibit commercial vending in these locations.
Additionally, the District may restrict or prohibit sidewalk vendors within the immediate vicinity of an area designated for a temporary special permit for the duration of the temporary special permit.
Given the foregoing, staff has updated the language the Vending Ordinance to specifically address the criteria in SB 946.
In light of developments on the waterfront, District staff has also determined proposed changes to the Designated Areas and Allotted Spaces for authorized vending and performing activity. A Designated Area is an area on Tidelands designated by the District for authorized vending and performing activity. Each Designated Area contains Allotted Spaces, each of which is of a specific size based on the available space in and adjacent to the Designated Area in which the Allotted Space is located.
The proposed changes to the current Designated Areas and Allotted Spaces are as follows:
• The Designated Area immediately adjacent to the Maritime Museum of San Diego has been eliminated due to width of the North Embarcadero Promenade being re-evaluated in light of the pedestrian traffic traversing the area.
• Two Designated Areas immediately adjacent to the Portside Pier construction site have been eliminated due to being located inside the construction zone, and those locations will be re-evaluated as potential Designated Areas when the project is completed and the Portside Pier development is operational.
• Allotted Spaces were added to the Designated Area on the North Embarcadero Promenade between Portside Pier and the B Street Cruise Ship Terminal.
• Allotted Spaces were added to the Designated Area immediately to the south of G Street Mole and USS San Diego Memorial artwork.
• A new Designated Area was added on the public promenade adjacent to the Chesapeake Fish Company, an area that experiences significant foot traffic passing between the North and South Embarcadero.
• Allotted Spaces were added to the Designated Areas at the foot of Embarcadero Marina Park North due to the opening of additional space when bikeshare docks and trees were removed in the area.
• A Designated Area was removed from the Coronado Bayfront near the Coronado Landing condominium complex, as the land on which it was located was determined to be in the City of Coronado’s jurisdiction and not in the District’s purview.
The changes to the locations for authorized vending resulted in the reduction of Designated Areas from 13 to 10, but also resulted in an increase in Allotted Spaces from 73 to 76, meaning a net gain of 3 spaces in which this activity may be conducted.
District staff conducted three outreach meetings in November 2019 to present the proposed Vending Ordinance amendments to stakeholders who included vendors, performers and District tenants, take their input and answer their questions. The most common stakeholder input consisted of:
1. Questions as to how the District can restrict commercial vending if SB 946 is supposed to have removed restrictions to commercial vending;
2. Questions about individual example items and whether each is considered an authorized item to vend under the District’s ordinance; and
3. Requests to consider adding small (3’ wide or less) Allotted Spaces in narrow areas that could accommodate musicians who can fit into smaller spaces.
For restricting commercial merchandise vending: Under the First Amendment, a public agency may distinguish between commercial vending and non-commercial vending and may restrict commercial vending more than it restricts non-commercial vending. The District has historically made this distinction in its vending ordinance. In the updated ordinance, the defining feature of commercial vending is that the merchandise has more than nominal value outside its message. The updated ordinance also includes examples of such merchandise, including housewares, handcrafts, and hats.
For the permitted items: The items listed as non-commercial merchandise are permitted. These items include those materials traditionally associated with expressive speech, such as bumper stickers, buttons, and books.
Based on this input, District staff made changes to the Vending Ordinance to further clarify what types of items are authorized for vending; and better explain the District’s rationale for restricting commercial vending. Those changes are included in the draft Vending Ordinance that staff is presenting to the Board for approval.
General Counsel’s Comments:
The Office of General Counsel has reviewed this agenda sheet and attachments, as presented to it, and approves them as to form and legality.
Environmental Review:
The proposed Board action, including without limitation, an ordinance that amends District Code Article 8, Section 8.05 - Vending and Performing, Regulated, does not constitute an “approval” or a “project” under the definitions set forth in California Environmental Quality Act (CEQA) Guidelines Sections 15352 and 15378 because no direct or indirect changes to the physical environment would occur. The proposed ordinance identifies and redesignates vending and performance locations in each District park to encourage the free flow movement of visitors, avoid obstacles to the use and enjoyment of natural resources and recreational opportunities, protect scenic views, and prevent risks to safety. The proposed ordinance amendment is consistent with the Safe Sidewalks Act (California SB 946) that imposes limits on how local authorities may regulate the vending of food or merchandise on public sidewalks or other pedestrian paths. CEQA requires that the District adequately assess the environmental impacts of projects and reasonably foreseeable activities that may result from projects prior to the approval of the same. Any project developed as a result of Board’s action that requires the District or the Board’s approval, including without limitation District proposed legislation or a request for funding will be analyzed in accordance with CEQA prior to such approval. CEQA review may result in the District, in its sole and absolute discretion, requiring implementation of mitigation measures, adopting an alternative, including without limitation, a “no project alternative” or adopting a Statement of Overrising Consideration, if required. The proposed Board action in no way limits the exercise of this discretion. Therefore, no further CEQA review is required.
In addition, this Board item complies 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 action is consistent with the Public Trust Doctrine.
Finally, this Board item does not allow for “development,” as defined in Section 30106 of the California Coastal Act, or “new development,” pursuant to Section 1.a. of the District’s Coastal Development Permit (CDP) Regulations because it will not result in, without limitation, a physical change, change in use or increase the intensity of uses. This item does not increase the intensity of use because the uses are already occurring, they are just being relocated. Therefore, issuance of a Coastal Development Permit or exclusion is not required. However, the District’s projects require processing under the District’s CDP Regulations. If a project is formulated as a result of Board’s direction, the Board will consider approval of the project and any improvements associated after the appropriate documentation under District’s CDP Regulations has been completed and authorized by the Board, if necessary. The Board’s direction in no way limits the exercise of the District’s discretion under the District’s CDP Regulations
Equal Opportunity Program:
Not applicable.
PREPARED BY:
Jim Hutzelman
Program Manager
Waterfront Arts & Activation
Yvonne Wise
Director, Waterfront Arts & Activation
Attachment(s):
Attachment A: Draft Amended Unified Port District Code Section 8.05