L.A.’s Street Vending Proposal Is Unconstitutional And Unwise

L.A. street vendor - photo by Alissa Walker via Flickr
L.A. street vendor - photo by Alissa Walker via Flickr

Last February, prodded by immigrants’ rights activists, the Los Angeles City Council voted unanimously to decriminalize street vending. Commendably, our City’s leaders determined that they would not play handmaiden to the Trump administration and facilitate the deportation of undocumented street vendors by continuing to mete out criminal penalties for sidewalk vending.

Nearly a year later, and months behind schedule, however, the city’s estimated 50,000 street vendors languish in frustrated uncertainty and operate in a legal purgatory of sorts, subject to administrative citations and exorbitant fines.

While public statements by members of the City Council this past year seemed to indicate an intent to create a workable street vending policy, those statements have been belied by more recent reports that the city is moving forward with a proposal that would grant brick-and-mortar businesses blanket authority to ban vending on public sidewalks outside their doors.

This proposal is undemocratic, unwise, and almost certainly unconstitutional twice over. With respect to the law, the proposed delegation of untrammeled discretion to private businesses runs headlong into the longstanding prohibition that a legislative body’s authority to make fundamental policy decisions (including the power to regulate municipal streets and sidewalks) may not be handed over to private actors carte blanche. While state constitutional law permits regulatory regimes that enlist businesses in the enforcement of already-legislated rules, it does not allow businesses to make the rules themselves.

This distinction between enforcing and making rules, observed by the California Supreme Court in 1937, makes sense. The first principle of our democracy is that the power to make law derives from the people. Accordingly, only the people or their representatives can exercise it. Enforcing the law, by contrast, is a secondary power usually vested in the executive branch by institutional necessity. And redistributing that power for practical purposes to other actors is commonplace. But by empowering brick-and-mortar stores to not just enforce but also effectively set land use policy on their block, the proposal goes too far and enables private actors with pecuniary interests in shutting down street vending (or worse: extorting vendors for the right to use public space) to usurp the legislative power for their own gain.

Separately, the proposal may also amount to a discriminatory classification that penalizes vendors based entirely on whether they can obtain permission to operate from brick-and-mortar establishments. Such discrimination bears no rational relationship to any legitimate governmental interest beyond economic protectionism—neither alleviating congestion, nor improving circulation, nor ensuring pedestrian safety, for example. Indeed, a California appellate court reached this same conclusion in 1979, when it struck down as unconstitutional a similarly protectionist Los Angeles ordinance that prohibited the operation of food trucks within 100 feet of a restaurant, finding the ordinance constituted an arbitrary and “naked restraint of trade.”

As a matter of policy, the proposal is also deeply flawed. At a time when our city’s middle class is being hollowed out, housing costs are skyrocketing, and our job market is increasingly characterized by a sharp divide between high-skill positions and minimum-wage jobs with few or no benefits, it is unimaginable that the city would so obviously imperil the entrepreneurial energies of small businesses like street vendors by subjecting their viability to the whims of their nearest competitor. These small businesses enliven our streetscapes and embody what the Times’ celebrated food critic Jonathan Gold has called the “miracle of entry-level capitalism.” To be sure, these vendors embark on admirable and courageous journeys of upward mobility. Some, like Guerrilla Tacos’ Wes Avila, have emerged among the country’s most celebrated chefs. But most importantly, vending generates wealth that gets reinvested in neighborhoods that see too little of it.

How the city addresses street vending ultimately strikes at the very idea of what Los Angeles ought to be. Is this a place where anyone who works hard can carve out a rewarding life with opportunities for their children—a city of strivers, animated by a relentless creative energy—or a playground for the rich and well-connected? Are we a community that truly cares about immigrants—one that wants newcomers to not only survive but thrive—or a people content to shift from a posture of intolerance to one of indifference? Our city’s leaders can try to pass the buck on street vending to private businesses, but they cannot duck responsibility for the consequences of that judgment. If the City Council follows through on this element of its proposal, we will know where they stand.

Salvador E. Pérez is a government and regulatory attorney in the Los Angeles office of Manatt, Phelps & Phillips LLP. Adam S. Sieff is a constitutional and commercial litigator in the Los Angeles office of Latham & Watkins LLP, and Executive Vice Chair of the American Constitution Society for Law & Policy. The opinions expressed are theirs alone.

  • Matt

    While many think street vending should be illegal, if it is made legal the street vendors need to follow business protocols like any other business and pay business license fees, sales taxes and for food vendors be subject to food quality and safety inspections (and pay the fees that allow for these inspections).
    A two tiered system where the brick and mortar store pays property taxes indirectly through rent or directly through a NNN lease, while a competing street vendor sets up shop on the sidewalk in front of the property tax paying business for free is unjust, immoral and downright unfair. Also, an uneven two tiered system would be highly racist as the brick and mortar business owners are often Asian or African American and the street vendors are almost always Latino due to their home country culture of street vending.

  • Asher Of LA

    Do you have any evidence that street food is more dangerous than restaurants?

    A business that serves people using fewer resources, i.e. otherwise forlorn sidewalks, is a civic virtue, not a vice.

    As for the racism charge, enterprising people of all races would adjust to a liberalized street vending system.

  • Mehmet Berker

    Strong piece, thanks gentlemen.

    Also—it seems like a flimsy, and unproven, assertion that street vendors are even in competition with brick and mortars. I dunno who’d think of going to a restaurant for an elote.

    Much like assertions made in relation to bike infrastructure, business owners say a lot about negative impacts without there being actual economic surveys having been done to prove such claims unequivocally.

  • Matt

    Street food vendors aren’t subject to health inspections, while a restaurant making the exact same food is. You tell me which one is more dangerous? Not to mention the equality of it. Affected African Americans would likely close their shop and if they were able to recover from that then open a new one in a municipality that is more business friendly and doesn’t let competing street vendors open up in front of their shop. Doubtful they would start up as a street vendor as few have in cities where are they are permitted. This would just push out more blacks to the Inland Empire and Antelope Valley. Saying that an African American should just adjust after having his business go into bankruptcy is extremely insensitive to their economic plight to say the least.

    Civic virtue? The City relies almost wholly on sales and property taxes. Very few street vendors properly collect sales taxes and none pay property taxes. Street vending results in more trash on the sidewalks and parks, yet provides no funds to address this much less contribute to the other functions of the City. Without brick and mortar stores, how do expect the City to be able to fund services much less the massive pensions and health benefits of City employees?

  • Matt

    When you allow street vendors to set up right in front of a competing business you will see this. I could set up a nice street cart and make tacos in front of a taqueria. I could shout that my tacos are 30-50% less than the taqueria as people are about to walk into the taqueria due to my much lower cost structure. Maybe I can’t offer the same full menu, but people like a deal. No doubt I could siphon a ton of their business.

  • sahra

    Good lord, Matt…I can’t even address the ridiculous racism claim because it is genuinely that ridiculous. As are the weird scenarios involving taco vendors in an earlier comment.

    Like death and taxes, I can always expect that the people that seem to know the least about a thing are the most likely to speak on it… usually with weird racial undertones. I can’t recommend against this practice enough.

  • Matt

    Lol, the article even mentions tacos. The article also argues that brick and mortar stores should have no right to restrict a street vendor setting up right outside their store and then also discusses how a court case where it was decided it was unlawful to restrict food trucks in front of restaurants.

    So given the above, and to think of a street vendor that sells food like tacos in front of a tacqueria in a city with hundreds of tacquerias was a really weird, off the wall scenario? Really hard to imagine that one for you? Your narrowness is amazing.

    Your inability to even entertain business and economic arguments into any analysis is troubling. You previously answered my point on one of the main macro-economic problems with subsidized housing with a rant on how poor you once were. Talk about being weird and off tangent.

    You are the expert on South and East LA, despite being a transplanted gentrifyer yourself (nothing wrong with that but lets be real here as you are despite you calling out others so quickly). So tell us what local shop owners and small retail businesses think of having street vendors feet from their entrances. I think readers would like to know the opinions of 25-30 such people.

  • Aaron

    Can’t find an answer to this online. Does legalized street vending pertain only to food vendors or also merchandise vendors as well?

  • sahra

    Merchandise as well.

  • sahra

    I’ve been in the same rent-controlled building for 17 years on the border between Los Feliz and Silver Lake which I now cannot afford to leave and which I will probably die in… so I’m not sure where that accusation of being a gentrifier is coming from?

    I think your assumptions are misguided because vendors often make agreements with shop owners… in the garment district, for example, vendors often pay the shop owners a fee to be able to set up outside. They are there regularly – it is in neither’s interest to neglect that relationship or compete for customers…And it usually works out that the fees the vendors pay are quite high because they have no power and no legal right (as yet) to be there, even though they are integral to the bustle of the area. Food vendors in South LA often set up in the evening along stretches where there are no restaurants – they bring important life to streets that otherwise feel deserted after dark… especially in a community where there are so few sit-down places. In Boyle Heights and other parts of the city, vendors feed folks on their way to work and school…folks who don’t always have enough cash accumulated at on time to be able to stock up on groceries. Fruit and vegetable vendors offer the kinds of fare that are generally not available in the neighborhood. Many often employ homeless and other indigent folks to assist with set-up and clean-up of their spots, meaning that they help inject life into the most difficult-to-reach areas of our economy.

    Vendors tend to fill a gap, in other words.

    That’s not to say there are never clashes…there are, and they merit honest discussion and analysis, not straw-man scenarios used to make blanket assessments. But food trucks and vendors should also not be conflated – they are governed by separate ordinances and deserve separate discussions. Especially because food trucks do have the capacity to offer competition to a brick-and-mortar in a way that an elotero set up on a residential street corner does not.

    I actually began to look into a story about vendors in MacArthur Park last week. It should publish later this month… so I’m sure we’ll pick up this conversation then.

  • Matt

    http://ridley-thomas.lacounty.gov/index.php/vending/

    Here is what the most powerful black politician in Los Angeles that represents pretty much all of South LA wrote about the problem a few years ago. It pretty much exactly mirrors and documents my concerns with food safety, tax loss, and pressure on small businesses with examples from the community. Comments on his blog and to his office were overwhelming against open street vending, especially from African American constituents.

  • Vooch

    what evidence and data do you have that health inspection by bureaucrats is effective in any way ?

  • Vooch

    NYC has a vibrant system of street vendors. Might be useful to examine their regulatory model

  • GlobalLA

    I’m all for street-vending but they should play by the rules just like the brick-and-mortars. Even in a strip-mall the landlord would not allow two similar stores to move-in if it was to the detriment of fair and healthy competition. Street vendors are no different.

  • GlobalLA

    Those street vendors pay high rents and subject to regulations as well. Where they can set up shop also is controlled. They supplement brick-and-mortar shops by the sheer volume of foot-traffic on the streets. That model breaks down here in Los Angeles where walkability is less and thanks to Democrats, a highly-taxed business environment within our NIMBY-centric communities.

  • GlobalLA

    Agree and apparently Mehmet has the luxury of never owning a business that had to go through the scenario you describe.

  • Vooch

    NYC street vendors pay rent ?

  • GlobalLA
  • Aaron

    Food vendors seem to be organized and few per block. The merchandise vendors are a different story. Dozens line the block in front of my workplace on Saturdays and Sundays. The grass by the curb is dead, sprinklers are long broken, trash left over for others to clean on Monday etc… The vendors are there for 12-18 hours, so when they need to use the bathroom they go in the alley behind our business. The nearby businesses either need to cleanup after these people or ignore it and have it look like Skid Row.

    They also use our conveniently located dumpsters for their trash. The new city dumpsters don’t have locks and the vendors don’t seem to care what goes in the new recycling dumpster, so the city contractors are putting un-recycables in the recycling centers.

    The swap meet environment also sometimes attracts a criminal element. Some weekends druggies will be around, drunks, drug dealers blending in with the circus.

    It’s really not fair how these people get passes for not paying taxes, not getting business permits, littering, blocking sidewalks etc.. It’s like the city of LA is scared of enforcing the law, I don’t get it.

  • Matt

    Well, Silver Lake at the turn of the 21st Century was very different from what it is now with a larger Latino population and was in the midst of a battle over gentrification. You could have easily displaced a Latino who grew up in the neighborhood by getting in your rental app a few minutes before they did.

    Also, no offense to you, but Streetsblog could have easily hired a local native to South or East LA for your current beat. Someone who grew up in these neighborhoods would have deep knowledge of the community and the position could have been a resume builder for an up and coming writer or journalist. Streetsblog could have easily queried local schools journalism or English teachers to see if they had a former student who just completed their degree and wanted to work in their neighborhood, but I guess Streetsblog is above it all and only thinks local hire should apply to organizations like Metro, USC and developers and not them.

    Overall, I don’t take issue with your renting a rent controlled apartment in a gentrifying area or taking a job from a local (that is probably more on Streetsblog). However, if you are going to throw rocks at others you consider gentrifiers or displacers, I think you should look in the mirror and understand you live in a house made of very thin glass.

    On vending, my comments relate to the article and its argument for near limitless vending and not street vending in general. I’m not against all street vending, but I think there needs to be some regulations and I don’t support vendors being able to set up right in front of any business they like against that business’ will.

  • sahra

    I do find it hard to believe that someone that twice hid behind names I can only assume sounded non-white to him to pose as someone from the community in order to make questionable comments is sincere in raising these concerns. Of all the things I expected of you, that level of ugliness wasn’t one of them. And I lost any respect I had for your sincerity.

    That said, the conversation about privilege is one I have with every person I sit down with for the first time because I actually see these as important questions and things that constantly need to be reckoned with – not ways to score points, as you seem to think they might be. So, the people I engage are aware of who I am, what some of my history is, how long I’ve been a volunteer in the schools in their community, what issues I work on, what I know and what I don’t know, and what I write about and how I write it. They get to decide whether or not they feel comfortable trusting me with their stories and I work very hard to maintain that trust and to never take it for granted.

    Streetsblog could indeed have worked harder to nurture a local voice, true. But they didn’t have the resources then or now and, honestly, they didn’t know what they didn’t know back then. And the truth is, you and so many others can barely tolerate my writings as it is – the mistaken assumptions about what I do (I do not throw stones), the distortions of what I believe or am trying to say, the decrying of these kinds of perspectives even being allowed on a livability news source, the effort that is put into discrediting the idea that race plays a role in anything… If readers can’t listen to me after all the work I do to translate observations into language and frames they can understand, I’m not sure how they would be able to listen to anyone else.

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