Vendors: The heat sources used to cook food by the unlicensed vendors are a fire hazard but a state law caps enforcement options for individuals who sell food or goods on the street. Holden Gering

When Santa Monica’s State Senator Ben Allen voted in favor of a popular Democratic bill to decriminalize street vending he had no idea of the chaos it would contribute to on the Pier.

At the time that S.B. 946 passed in 2018, it was lauded for preventing low income and immigrant workers from becoming trapped in cycles of fines and criminal sentences. The bill came on the heels of a Trump Administration Executive Order that prioritized illegal immigrants with a record for deportation and was seen as imperative for protecting the state’s most vulnerable street vendors.

However, by removing any criminal enforcement related to sidewalk vending, the bill limited local governments’ ability to ensure that food is safely prepared, fuel is safely used, waste is safely disposed of and that vending is practiced in safe locations.

In many places across the state this has not been an issue and the bill has successfully supported economic mobility for vendors. On the Santa Monica Pier, however, chaos broke out.

Vendors began to set up shop on and around the Pier shortly after the bill passed, but the number of vendors snowballed dramatically starting in the summer of 2020 and continuing through 2021. The crowds of vendors have led to a range of health, safety and environmental problems.

These include the mass dumping of trash and liquid waste by the beach and ocean, unsanitary food preparation, the unregulated use of combustible fuels on the wooden pier deck, the blocking of emergency vehicles’ access to the Pier, and inter-vendor fights and harassment.

“This legislation has taken out the ability to hold people accountable for following the existing laws around safe and lawful vending,” said City Councilwoman Lana Negrete. “(S.B. 946) has created a real danger to our citizens’ health and safety. It has also impacted greatly those who have legally set up businesses and whom are also minorities who are often completely ignored and not seen as victims.”

S.B. 946 does allow cities to establish their own ordinances to govern street vending, so long as regulations are in place for health and safety reasons.

In 2019 Santa Monica established a permitting program that requires street vendors to undergo health, hygiene and fire safety training and is designed to prevent the kind of problems seen around the Pier. Additionally, Santa Monica’s vending ordinance prevents street vendors from setting up shop within a 100 foot radius of the Pier.

The majority of vendors have chosen to ignore these regulations and bypass the permitting program because S.B. 946 prevents any criminal enforcement of rules related to street vending.

“The City has what many people in the City would say is a generous program to allow people to comply with the law, but at the end of the day if they choose not to comply with the law, there’s really no consequences,” said Interim City Attorney Joe Lawrence.

Due to S.B. 946 Santa Monica’s vending regulations can only be enforced by an administrative citation, which amounts to a fine. Vendors cannot be compelled to hand in an ID when they are being cited and are allowed to argue down their fine to minimal amounts on the basis of economic necessity.

In order to address the problems on the Pier, in August City Council passed criminally enforceable ordinances banning specific bad practices: unpermitted combustible fuel use on the Pier and the dumping of solid and liquid waste by the Pier and beaches. This gives the City the authority to issue a misdemeanor citation, which officers are instructed to use as last resort and only after repeated education efforts and warnings. So far the new ordinances have helped rein in, but not solve, the issues on the Pier.

The problems with S.B. 946 are not unique to the Santa Monica Pier, however it is certainly an outlier when compared to other tourist destinations statewide.

Some of the unique factors of the Pier are its sheer popularity—it attracts several million visitors a year—and the fact that it was the only game in town for vendors for much of the pandemic as the majority of other tourist attractions were closed.

Additionally, while the problem of trash dumping or open flames might be a headache in the parking lot of an event venue, they pose more serious dangers on a 114-year-old wooden structure next to sensitive marine habitat.

One agency that has taken an interest in issues stemming from S.B. 946 is the California Travel Association, which advocates for the interests of the state’s travel and tourism industry.

“What we’re seeing with S.B. 946 is there’s really just no incentive on either side for people to get permitted or for law enforcement to go after unpermitted people,” said Emellia Zamani, Cal Travel Director of Government Affairs & Public Policy. “They (unpermitted vendors) get a fine, but it’s not deterring anyone from some of the bad actions that we’re seeing in Santa Monica, in Santa Cruz, in San Francisco, which is leaving food waste that attracts rats, not properly refrigerating the foods that you’re serving customers… having open flames on wooden piers that could cause fires and dumping grease into the water.”

Cal Travel has convened a task force for destinations to discuss the issues they are facing and what they would need from the state to ensure vending is practiced in a safe and respectful manner. The City of Santa Monica is also working on potential legislative solutions as is Senator Ben Allen, who hopes to introduce new legislation reforming the State’s street vending laws this session.

“The City is working with our state representatives in Sacramento to advance legislative changes that could assist in addressing the impacts that unpermitted vending on and around the Pier have on public safety, public health, and the environment. These include potential minor modifications to the restrictions imposed by S.B. 946 that would increase the effectiveness of our enforcement work,” said City Public Information Officer Constance Farrell.

Senator Ben Allen said he sees the problem with S.B. 946 as two-fold — local governments have little enforcement power against repeated bad behavior of unpermitted vendors and at the same time the existing laws make it extremely difficult for street food vendors to gain a permit.

Every local government is able to establish its own permitting program for street vendors, however all street food vendors are required to have a County health permit, which is governed by the California Retail Food Code and contains provisions that are very difficult for street food vendors to comply with.

These include a requirement for a three compartment sink, a ban on slicing food on site, a ban on heating previously cooked food and a requirement that food is prepared in an approved restaurant or commissary space.

“The Retail Food Code was written before S.B. 946,” said Public Counsel attorney Doug Smith. “The law never had to account for or contemplate street vendors, because there was this other set of local regulations that were prohibiting street vending and effectively making it illegal.”

Smith believes that reforming the Retail Food Code will motivate more vendors to gain permits and come into compliance with local vending ordinances.

“It’s possible that there may be some vendors who would perhaps rather not have the headache of an additional set of rules and regulations and procedures, but there are a lot of vendors that want to participate in something as long as it is oriented towards helping them succeed and not, like we currently have, a system that is geared towards excluding,” said Smith.

Santa Monica City Councilmembers support changing the Retail Food Code to make it more sensitive to the context of street vendors and voted in a Jan. 11 meeting to incorporate this into the City’s 2022 state legislative agenda.

Senator Ben Allen is seeking to craft a new piece of legislation that would both remove legal barriers to gaining a permit and create new enforcement measures against unpermitted vendors. New enforcement measures could potentially include penalties for repeat offenders or giving cities the ability to temporarily impound carts if vendors refuse to provide identification when being issued an administrative citation.

“In making it difficult to get a permit you actually open up space for the major players in the vending world to be the folks who are more comfortable skating on the edge of the law,” said Allen. “So what you need to do is make it easier for folks to operate legally and then also give more tools to local governments to go after those who don’t operate legally.”

Clara@smdp.com