“Generally, an action is mooted when the issues 16 presented are no longer live and therefore the parties lack a legally cognizable interest for 17 which the courts can grant a remedy.”
How later courts described this case
- “Generally, an action is mooted when the issues 16 presented are no longer live and therefore the parties lack a legally cognizable interest for 17 which the courts can grant a remedy.”
- summarizing Long Beach Area Peace 14 Network, 574 F.3d at 1025
- Balboa Park is a “traditional public forum.”
- “The time, place, or manner standard 20 applies to fully protected speech in a public forum.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 WILLIAM J. DORSETT, and Case No.: 24-cv-00813-AJB-AHG
ROGELIO FLORES,
12
ORDER GRANTING IN PART AND
Plaintiffs,
13 DENYING IN PART DEFENDANT’S
v. MOTION TO DISMISS
14
THE CITY OF SAN DIEGO, and DOES
15 (Doc. No. 6.)
1-25, inclusive,
16 Defendants.
17
18 Before the Court is Defendant City of San Diego’s (“Defendant” or “City”) motion
19 to dismiss Plaintiffs William J. Dorsett and Rogelio Flores’s (“Plaintiffs”) First Amended
20 Complaint, (Doc. No. 5, “FAC”). (Doc. No. 6.) The motion is fully briefed. (See Doc. Nos.
21 6, 8, 9.) For the following reasons, the Court GRANTS IN PART and DENIES IN PART
22 Defendant’s motion to dismiss.
23 / / /
24
/ / /
25
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28 / / /
1 I. BACKGROUND
2 Plaintiffs are “buskers,” or street artists and performers. (FAC ¶ 1.) Plaintiff William
3 J. Dorsett paints and creates palm frond roses, “rose[es] made by hand from palm fronds,”
4 which he sells. (Id. ¶¶ 6, 51.) Plaintiff Rogelio Flores juggles and performs magic shows.
5 (Id. ¶ 7.)
6 Plaintiff Dorsett
7 A. Ocean Beach
8 On February 1, 2023, Dorsett was busking—painting and displaying his artwork for
9 sale on a display table—on a public sidewalk in Ocean Beach, San Diego. (Id. ¶ 15.) Three
10 City park rangers and three police officers approached him. (Id.) A park ranger informed
11 Dorsett that he had to move his art display and table from the sidewalk to a grassy location,
12 an area designated by the City for First Amendment activities, which Plaintiff alleges was
13 crowded with other vendors selling goods. (Id. ¶ 38.) Plaintiff also alleges that the park
14 rangers and police officers told him that his art was not speech protected by the First
15 Amendment because he offered his art for sale. (Id. ¶¶ 2, 22–24.) The park rangers issued
16 Dorsett a written Sidewalk Vending Administration Citation (“citation”) for 1) vending
17 without a permit in violation of San Diego Municipal Code (“SDMC”) § 36.0103, and 2)
18 vending on a sidewalk within 15 feet of a high-traffic bike and shared use path in violation
19 of SDMC § 36.0106(a)(11)(J). (Id. ¶ 17.)2 The citation instructs Dorsett to “obtain [a]
20 sidewalk vending permit for any vending activities.” (Doc. No. 5-1 (citing SDMC §
21 36.0103).)
22 / / /
23
/ / /
24
25 1 The following facts are taken from Plaintiff’s FAC, which the Court construes as true for the limited
purpose of resolving the instant motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013).
26
2 SDMC § 36.0103 requires all sidewalk vendors to obtain a vending permit prior to vending on any
27
sidewalk. (FAC ¶ 18.) SDMC § 36.0106(a)(11)(J) states, in relevant part: “(a) No stationary sidewalk
28 vendor shall vend and no roaming sidewalk vendor shall stop to make sales in the following locations: …
1 B. El Prado, Balboa Park
2 On May 21, 2023, Dorsett was busking in El Prado in Balboa Park. (FAC ¶ 34.) El
3 Prado is a “historic public busking location,” comprised of an approximately 40-foot-wide
4 pedestrian throughfare “that opens into large areas, with large intersections.” (Id. ¶¶ 33–
5 34, 44.) While Dorsett was busking, a City park ranger “forced Dorsett, under threat of
6 citation,” to move from El Prado “to a secluded busking location[.]” (Id. ¶ 34.) The ranger
7 informed Dorsett that he was obstructing a public sidewalk and blocking a fire lane (id.
8 ¶ 44), yet Plaintiff alleges his “small painting set up . . . left ample room on the sidewalk
9 for members of the public to walk around him” (id.). On March 1, 2023, Dorsett observed
10 a People for the Ethical Treatment of Animals (PETA) demonstration, “tak[ing] up more
11 than 400-square-feet of a public walkway, also in the El Prado area of Balboa Park, in a
12 way that in fact did obstruct the public walkway.” (Id.)
13 From December 1-2, 2023, during December Nights in Balboa Park, Dorsett alleges
14 that he was not permitted to set up his art displays in El Prado, as he had done in December
15 2022. (Id. ¶ 65.) Dorsett alleges that because the City “forced him to set up outside of the
16 area of the [December Nights] event,” during the 2023 December Nights held from
17 December 1-2, 2023, he earned approximately $400 compared to the approximately $1,200
18 he earned during the 2022 December Nights held from December 2-3, 2022. (Id.) The same
19 vending ordinance was in effect during both the 2022 and 2023 December Nights events.
20 (Id.)
21 C. Comic Con
22 On July 18, 2023, a day prior to the start of the five-day San Diego Comic Con event
23 (“Comic Con”), the City Chief Park Ranger, Michael F. Ruiz, informed Dorsett that he was
24 only permitted to engage in expressive activities during Comic Con in a City-designated
25 area near the San Diego Convention Center, where Comic Con is held. (Id. ¶ 39.) Upon
26 arrival to the designated grassy area, Dorsett alleges that he observed it was “too small” to
27 accommodate buskers. (Id.) He also found that the grass was over-watered to the extent
28 that water was pooling on the sidewalk and the ground was muddy. (Id.) During the 2023
1 Comic Con event, Dorsett earned approximately one-third of the amount that he previously
2 earned at past Comic Con events from selling his art. (Id.) Dorsett alleges the City “overly
3 watered” the designated zone for buskers “to discourage buskers from engaging in
4 expressive activities during Comic Con.” (Id.)
5 Plaintiff Flores
6 A. El Prado, Balboa Park
7 Flores performs magic shows for the public for monetary donations. (Id. ¶¶ 53, 71.)
8 On several occasions in September 2022, and on May 29, 2023, while Flores was
9 performing his magic show in Balboa Park, on El Prado, park rangers informed him that
10 he could not perform on El Prado, and instead directed him to a City-designated “First
11 Amendment” area. (Id. ¶¶ 32, 35.) Flores alleges that his reach to the public while
12 performing at the designated “First Amendment” area was severely limited compared to
13 his reach on El Prado. (Id.) On November 16, 2023, Flores was busking in Balboa Park on
14 El Prado and a group of approximately twenty people gathered to watch him. (Id. ¶ 36.)
15 After his show concluded, a park ranger issued Flores three citations.3 (Id.) Flores alleges
16 that enforcement of the City’s vending ordinances led to the reduction of his earnings from
17 busking from approximately $250 per day to approximately $120 per day. (Id. ¶ 66.)
18 Sidewalk Vending Ordinance & Expressive Activity Ordinance
19 Plaintiffs challenge the constitutionality of two sets of City regulations. First,
20 Plaintiffs challenge Ordinance No. 21459, SDMC Chapter 3, Article 6, Division 1,
21 Sidewalk Vending (§§ 36.101-36.0116) (the “Sidewalk Vending Ordinance”), that
22 includes a vending permit requirement (SDMC § 36.0103), and a vending locations
23 provision (id. § 36.0106). (See Doc. No. 5-2.) The Sidewalk Vending Ordinance came into
24 effect on June 22, 2022, and requires all sidewalk vendors to obtain a vending permit prior
25 to vending on any sidewalk. (Id. § 36.0103(b).) Section 36.0106 additionally stipulates,
26 “[n]o stationary sidewalk vendor shall vend . . . within 15 feet of any . . . high-traffic
27
28
1 sidewalk . . . or high-traffic bike and shared use path.” (Id. § 36.0106 (a).) At the time
2 Plaintiffs were cited, the Sidewalk Vending Ordinance exempted “[a]ny vendor or
3 individual engaged solely in artistic performances, free speech, political or petitioning
4 activities, or engaged solely in vending of items constituting expressive activity protected
5 by the First Amendment . . . [.]” (Id. § 36.0113.) The law stated that these “activities are
6 exempt from the requirements of this Division.” (Id.)
7 Plaintiffs allege that the City impermissibly enforced the Sidewalk Vending
8 Ordinance by issuing citations to Plaintiffs for vending without permits while Plaintiffs
9 were engaged in exempted First Amendment protected activities. (FAC ¶¶ 67–76.)
10 Plaintiffs also allege that the City’s selective enforcement of the Sidewalk Vending
11 Ordinance, by allowing PETA to demonstrate in El Prado, in Balboa Park, but not
12 permitting Plaintiffs to busk in the same area, violates the Equal Protection Clause of the
13 Fourteenth Amendment. (Id. ¶ 73). Finally, Plaintiffs allege the Sidewalk Vending
14 Ordinance is unconstitutionally vague and contradictory in violation of the Due Process
15 Clause of the Fourteenth Amendment. (Id. ¶ 92.)
16 Second, Plaintiffs facially challenge SDMC Article 3, Division 5, Section 63.0501
17 et seq., titled, Expressive Activity on Public Property (“Expressive Activity Ordinance”),
18 which went into effect on March 29, 2024. (Id. ¶ 45.) Pursuant to the Expressive Activity
19 Ordinance, the City Manager may designate “expressive activity areas” available on a first-
20 come, first-served basis “to persons who desire to use equipment, including a table, easel,
21 stand, chair, umbrella, sunshade, or other furniture as part of the expressive activity”
22 without a permit. (Doc. No. 5-3, SDMC § 63.0504.) In other words, the Expressive Activity
23 Ordinance exempts individuals engaged in expressive activity from the vending permit
24 requirement under the Sidewalk Vending Ordinance if they conduct expressive activity in
25 a City-designated area for expressive activity. (Doc. No. 9 at 6.) The Expressive Activity
26 Ordinance aims to address unregulated expressive activity, which the City Council found
27 “has led to challenges for first responders to access emergency situations, has intensified
28 competing interests in available space, . . . has increased the incidents of physical
1 altercations among sidewalk vendors and persons engaged in expressive activity . . . [and]
2 has . . . limited the accessibility of common walkways and the safe flow of pedestrian and
3 other traffic in some areas.” (Doc. No. 5-3, SDMC § 63.0501(a).)
4 Plaintiffs allege the Expressive Activity Ordinance is an unconstitutional time, place,
5 and manner restriction that violates the Free Speech Clause of the First Amendment
6 because the designated “expressive activity areas” are in undesirable, lower-populated
7 locations than the areas where Plaintiffs seek to busk. (FAC ¶¶ 67–76.) Additionally,
8 Plaintiffs challenge the Expressive Activity Ordinance as unconstitutionally vague in
9 violation of the Due Process Clause of the Fourteenth Amendment because it lacks clarity
10 of what conduct is prohibited, leading to arbitrary enforcement and the chilling of free
11 expression. (Id. ¶¶ 5, 91.)
12 Pleadings
13 On May 8, 2024, Plaintiffs filed a complaint against Defendants City of San Diego
14 (the “City”) and Does 1-25. (Doc. No. 1.) On June 28, 2024, Plaintiffs filed their First
15 Amended Complaint. (Doc. No. 5.) Plaintiffs bring three claims for: (1) violations of the
16 Free Speech Clause of the First Amendment to the U.S. Constitution (42 U.S.C. § 1983);
17 (2) violations of the Equal Protection Clause of the Fourteenth Amendment to the U.S.
18 Constitution (42 U.S.C. § 1983); and (3) violations of the Due Process Clause of the
19 Fourteenth Amendment to the U.S. Constitution (42 U.S.C. § 1983). (Id. ¶¶ 67–95.)
20 Defendant City of San Diego filed a motion to dismiss Plaintiffs’ FAC pursuant to
21 Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 6.) The motion is fully briefed. (Doc.
22 Nos. 6, 8, 9.) The Court, pursuant to its discretion under Local Rule 7.1(d)(1), submitted
23 the motion on the parties’ papers. (Doc. No. 11.) For the reasons below, the Court
24 GRANTS IN PART and DENIES IN PART Defendant’s motion to dismiss Plaintiffs’
25 FAC.
26 II. LEGAL STANDARD
27 A motion to dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests
28 the legal sufficiency of a plaintiff’s complaint. See Navarro v. Block, 250 F.3d 729, 732
1 (9th Cir. 2001). “[A] court may dismiss a complaint as a matter of law for (1) lack of
2 cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare
3 Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation
4 omitted). However, a complaint will survive a motion to dismiss if it contains “enough
5 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
6 U.S. 544, 570 (2007). In making this determination, a court reviews the contents of the
7 complaint, accepting all factual allegations as true and drawing all reasonable inferences
8 in favor of the nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat’l League of
9 Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Notwithstanding this deference,
10 the reviewing court need not accept legal conclusions as true. See Ashcroft v. Iqbal, 556
11 U.S. 662, 678 (2009). It is also improper for a court to assume “the [plaintiff] can prove
12 facts that [he or she] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State
13 Council of Carpenters, 459 U.S. 519, 526 (1983). However, “[w]hen there are well-pleaded
14 factual allegations, a court should assume their veracity and then determine whether they
15 plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 664. “In sum, for a
16 complaint to survive a motion to dismiss, the non-conclusory factual content, and
17 reasonable inferences from that content, must be plausibly suggestive of a claim entitling
18 the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)
19 (quotations and citation omitted).
20 III. THE CITY’S REQUESTS FOR JUDICIAL NOTICE
21 The City requests that the Court take judicial notice of four items: (1) SDMC Chapter
22 3, Article 6, Division 1, Sidewalk Vending (§§ 36.0101-36.0116) (the “Sidewalk Vending
23 Ordinance”); (2) SDMC Chapter 6, Article 3, Division 5 Expressive Activity on Public
24 Property (§§ 63.0105-63.0506) (the “Expressive Activity Ordinance”); (3) Cal. Code Regs
25 title 24, Part 9, §§ 503.2.1-503.2.2, 503.4 - Fire Apparatus Access Roads; and (4) the City
26 of San Diego’s “Expressive Activity in Parks” website along with the Area Maps available
27
28
1 on the web page. (Doc. No. 9-1.)
2 Under the Federal Rules of Evidence, courts may take judicial notice of a “fact that
3 is not subject to reasonable dispute because it: (1) is generally known within the trial court’s
4 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
5 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Because “[m]unicipal
6 ordinances are proper subjects for judicial notice,” Tollis v. County of San Diego, 505 F.3d
7 935, 938 n.1 (9th Cir. 2007), the Court GRANTS Defendant’s request for judicial notice
8 of (1) the Sidewalk Vending Ordinance; (2) the Expressive Activity Ordinance; and (3)
9 Cal. Code Regs title 24, Part 9, §§ 503.2.1-503.2.2, 503.4 - Fire Apparatus Access Roads.
10 Additionally, the Court takes judicial notice of the City’s publicly available Parks &
11 Recreation webpage titled, “Expressive Activity in Parks” and the corresponding Area
12 Maps available on the City’s website, (Doc. Nos. 9-2–9-13), because they were “made
13 publicly available by [the City], and neither party disputes the authenticity of the web sites
14 or the accuracy of the information displayed therein.” Daniels-Hall v. Nat’l Educ. Ass’n,
15 629 F.3d 992, 998 (9th Cir. 2010). Accordingly, the Court GRANTS Defendant’s request
16 for judicial notice in its entirety.
17 IV. DISCUSSION
18 The City moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss
19 Plaintiffs’ FAC with prejudice. (Doc. No. 6.) Specifically, the City argues that: (1)
20 Plaintiffs’ “applied” challenges to the City’s Sidewalk Vending Ordinance fail because the
21 ordinance is constitutional and was not enforced in a discriminatory manner, (id. at 14– 15;
22 see also Doc. No. 9 at 2–10); (2) Plaintiffs were not harassed while performing their trades
23 because Plaintiffs were “operating on or adjacent to” fire lanes, (Doc. No. 6 at 7–9); and
24 (3) Plaintiffs’ facial challenge to the Expressive Activity Ordinance fails because the
25 ordinance is well defined, (id. at 11).
26
27
28 4 The “Expressive Activity in Parks” website is available at https://www.sandiego.gov/park-and-
1 First, the Court considers whether Plaintiffs’ alleged busking is protected as First
2 Amendment expressive activity. Then, the Court examines Plaintiffs’ as-applied challenge
3 to the Sidewalk Vending Ordinance, which went into effect on June 22, 2022, and was
4 subsequently amended in 2024. Finally, the Court addresses the sufficiency of Plaintiffs’
5 facial challenge to the Expressive Activity Ordinance, which went into effect on March 29,
6 2024.
7 A. Plaintiffs’ Expressive Activity
8 “The First Amendment, applied to the states through the Fourteenth Amendment,
9 prohibits laws ‘abridging the freedom of speech,’” including pure speech and other
10 expressive conduct. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1058 (9th Cir.
11 2010) (citing U.S. Const. Amend. I). “Performances on public sidewalks and in public
12 parks . . . are protected under the First Amendment as expressive activity.” Santopietro v.
13 Howell, 73 F.4th 1016, 1023 (9th Cir. 2023) (quoting Berger v. City of Seattle, 569 F.3d
14 1029, 1035–36 (9th Cir. 2009)). Additionally, an artist’s original painting is protected
15 under the First Amendment, and selling one’s original art does not remove it from the ambit
16 of protected expression. White v. City of Sparks, 500 F.3d 953, 954, 956–57 (9th Cir. 2007)
17 (“We hold that an artist’s sale of his original artwork constitutes speech protected under
18 the First Amendment.”); see also City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S.
19 750, 756 n.5 (1988) (“[T]he degree of First Amendment protection is not diminished
20 merely because the [protected expression] is sold rather than given away.”) Accordingly,
21 Dorsett’s creation and sale of his original paintings and Flores’s performances in public
22 parks and on public sidewalks are expressive activities protected under the First
23 Amendment. See White, 500 F.3d at 954; Santopietro, 73 F.4th at 1023.
24 Nevertheless, expressive activity can be “subject to reasonable time, place, or
25 manner restrictions.” Santopietro, 73 F.4th at 1023. The Court proceeds by examining
26 Plaintiffs’ challenges to the City’s Sidewalk Vending Ordinance and Expressive Activity
27 Ordinance.
28 / / /
1 B. Plaintiffs’ As-Applied First Amendment Challenge to the Sidewalk
2 Vending Ordinance (Count I)
3 “An as-applied challenge contends that the law is unconstitutional as applied to the
4 litigant’s particular speech activity, even though the law may be capable of valid
5 application to others.” Project Veritas v. Schmidt, No. 22-35271, 2025 WL 37879, at *4
6 (9th Cir. Jan. 7, 2025) (quoting Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.
7 1998)). “The underlying constitutional standard, however, is no different th[a]n in a facial
8 challenge.” Legal Aid Servs. of Oregon v. Legal Servs. Corp., 608 F.3d 1084, 1096 (9th
9 Cir. 2010).
10 1. Expressive Activity Exemption from Sidewalk Vending Ordinance
11 Plaintiffs’ as-applied First Amendment challenge of the Sidewalk Vending
12 Ordinance centers around Plaintiffs’ allegation that the City impermissibly cited Plaintiffs
13 for engaging in protected expressive activity that the Sidewalk Vending Ordinance
14 specifically exempted. (See FAC ¶¶ 19–20 (citing SDMC § 36.0113).) Plaintiffs allege by
15 issuing citations to Dorsett and Flores for busking without a permit in public fora, the City
16 “ignor[ed] the plain text of the City’s own ordinance that exempted artistic performances
17 and the vending of items constituting expressive activity protected by the First
18 Amendment” and “deprived . . . and chilled [Plaintiffs’] First Amendment right[s].” (Id.
19 ¶ 20.) Setting aside Defendant’s affirmative defense that Plaintiffs were impermissibly
20 busking on or adjacent to established fire lanes, which the Court addresses below, the City
21 does not mention Plaintiffs’ exemption argument in its motion to dismiss. (See generally
22 Doc. No. 6.)
23 The Sidewalk Vending Ordinance requires “all sidewalk vendors” to “obtain a
24 vending permit prior to vending on any sidewalk.” (Doc. No. 5-2, SDMC § 36.0103).
25 “Sidewalk vendor” is defined as “a person who sells goods from vending equipment or
26 from one’s person upon a sidewalk. It includes both roaming sidewalk vendors and
27 stationary sidewalk vendors.” (Id. § 36.0102.) Defendant does not dispute that at the time
28 Plaintiffs were cited, the Sidewalk Vending Ordinance’s “Non-Applicability” section
1 expressly exempted “[t]he following persons, entities or activities . . . from the
2 requirements of this Division” including “[a]ny vendor or individual engaged solely in
3 artistic performances . . . [or] . . . vending of items constituting expressive activity protected
4 by the First Amendment . . . [.]” (Id. § 36.0113.) Dorsett and Flores allege receiving
5 citations before the Expressive Activity Ordinance went into effect on March 29, 2024,
6 (FAC ¶ 45), and neither Plaintiffs nor Defendant assert that a different regulation was in
7 effect at the time Plaintiffs received citations that restricted expressive activity in public
8 fora.
9 “Although street performances are subject to reasonable time, place, and manner
10 restrictions, [the Ninth Circuit] ha[s] never upheld a law that subjects individuals or small
11 groups who wish to engage in non-commercial expressive activity in public fora to advance
12 notice and permitting requirements.” Santopietro, 73 F.4th at 1023 (citing Berger, 569 F.3d
13 at 1036, 1039). This is because “the significant governmental interest justifying the unusual
14 step of requiring citizens to inform the government in advance of expressive activity has
15 always been understood to arise only when large groups of people travel together on streets
16 and sidewalks.” Santa Monica Food Not Bombs v. City of Santa Monica, 540 F.3d 1022,
17 1039 (9th Cir. 2006).
18 Here, both Plaintiffs allege the City issued citations to Plaintiffs for engaging in
19 expressive activity in public fora without permits, in apparent disregard of the Sidewalk
20 Vending Ordinance’s “Non-Applicability” section that exempted expressive activity.
21 Dorsett received a citation on February 1, 2023 for selling his art without a permit on a
22 public sidewalk in Ocean Beach, (FAC ¶¶ 15–17), and Flores received three citations on
23 November 16, 2023 following his magic performance on El Prado in Balboa Park, (id.
24 ¶ 36). Public sidewalks and Balboa Park are public fora. See Am. C.L. Union of Nevada v.
25 City of Las Vegas, 333 F.3d 1092, 1099 (9th Cir. 2003) (“The quintessential traditional
26 public forums are sidewalks, streets, and parks.”); see also Kreisner v. City of San Diego,
27 Cal., 788 F. Supp. 445, 454 (S.D. Cal. 1991), opinion amended and superseded on denial
28 of reh’g, 1 F.3d 775 (9th Cir. 1993), and aff’d sub nom. Kreisner v. City of San Diego, 1
1 F.3d 775 (9th Cir. 1993) (Balboa Park is a “traditional public forum.”)
2 As alleged, the City enforced the Sidewalk Vending Ordinance as requiring
3 Plaintiffs to obtain individual permits before engaging in expressive activities on the public
4 sidewalks at Ocean Beach or in the El Prado area of Balboa Park. (FAC ¶¶ 15–17, 36.)
5 “[B]ut any such requirement would run squarely afoul of Berger’s central holding, that a
6 permitting scheme that ‘requires single individuals to inform the government of their intent
7 to engage in expressive activity in a public forum, a requirement that neither [the Ninth
8 Circuit] nor the Supreme Court has ever countenanced,’ is not permissible.” Santopietro,
9 73 F.4th at 1023 (quoting Berger, 569 F.3d at 1036, 1039). To the extent a different
10 regulation resembling the Expressive Activity Ordinance was in effect at the time Plaintiffs
11 were cited that permitted the City to direct individuals without permits to engage in
12 expressive activity in alternative “free expression” locations, the City has not cited to any
13 such regulation, and it is not before the Court. Accordingly, because Plaintiffs allege
14 receiving citations for engaging in protected First Amendment expressive activity in public
15 fora without permits, Plaintiffs’ as-applied First Amendment challenge to the Sidewalk
16 Vending Ordinance withstands Defendant’s motion to dismiss.
17 2. Affirmative Defense of Unclean Hands
18 In its motion to dismiss, the City asserts that when Dorsett and Flores received
19 citations for busking without permits in violation of the Sidewalk Vending Ordinance in
20 Ocean Beach, and on El Prado, in Balboa Park, respectively, both Plaintiffs were busking
21 on designated fire lanes in violation of the California Fire Code, subjecting Plaintiffs’
22 constitutional challenges to the affirmative defense of unclean hands. (Doc. No. 6 at 7–9
23 (citing Cal. Fire Code Regs, title 24, Part 9 § 503.2.1; 503.2.2; 503.4.))
24 Plaintiffs respond that Defendant provides no evidence that tabling on the public
25 sidewalk behind a red curb in Ocean Beach violates any fire code, or that El Prado is a Fire
26 Apparatus Access Road, and such argument impermissibly goes beyond the sufficiency of
27 Plaintiffs’ allegations in the FAC. (Doc. No. 8 at 9.) Plaintiffs further assert they were not
28 cited for blocking fire lanes, but were cited for violating the Sidewalk Vending Ordinance
1 for vending without permits, from which Plaintiffs assert they were exempt. (Id. at 7.)
2 “Ordinarily, affirmative defenses . . . may not be raised on a motion to dismiss except
3 when the defense raises no disputed issues of fact.” Lusnak v. Bank of Am., N.A., 883 F.3d
4 1185, 1194 n.6 (9th Cir. 2018). Here, disputes of fact preclude consideration of
5 Defendant’s unclean hands defense at the motion to dismiss stage. For example, Defendant
6 has not provided undisputed evidence that Dorsett was busking in a fire lane when he was
7 cited on a public sidewalk in Ocean Beach on February 1, 2023. (FAC ¶¶ 15–17.)
8 Defendant also has not provided undisputed evidence that Flores was not permitted to
9 perform his magic show in a fire lane in Balboa Park when he received three citations on
10 November 16, 2023. (Id. ¶ 36.) That Flores alleges he “was busking in Balboa Park on El
11 Prado” (id. ¶ 36), does not end the inquiry because the City of San Diego appears to have
12 designated two “expressive activity areas” immediately adjacent to El Prado’s fire lanes
13 (areas 7 and 8), (Doc. No. 9-4), and two additional “expressive activity areas” immediately
14 between two fire lanes in Balboa Park’s Plaza de Panama, (areas 9 and 10), (id.),
15 demonstrating that some expressive activity may be permissible in the same area.
16 Furthermore, while Court takes judicial notice of the City’s publicly available Parks &
17 Recreation webpage titled, “Expressive Activity in Parks,” which shows “area maps”
18 where City-designated expressive activity can occur without a permit, the City has not
19 demonstrated that the designated “expressive activity” areas existed at the time Plaintiffs
20 were cited. Accordingly, Defendant’s unclean hands affirmative defense does not justify
21 dismissal of Plaintiffs’ as-applied First Amendment claim at this stage.
22 3. Selective Enforcement of the Sidewalk Vending Ordinance
23 Plaintiffs also allege that the City violated the First Amendment by selectively
24 enforcing the Sidewalk Vending Ordinance, permitting PETA to demonstrate in the same
25 El Prado area of Balboa Park where park rangers prohibited Plaintiffs from busking.5 (FAC
26
27
28
5 Plaintiffs additionally allege a Fourteenth Amendment equal protection claim for the same alleged
1 ¶¶ 43, 44, 72.) “[D]iscriminatory enforcement of a speech restriction amounts to viewpoint
2 discrimination in violation of the First Amendment.” Foti, 146 F.3d at 635. “A restriction
3 on speech is viewpoint-based if (1) on its face, it distinguishes between types of speech or
4 speakers based on the viewpoint expressed; or (2) though neutral on its face, the regulation
5 is motivated by the desire to suppress a particular viewpoint.” Hightower v. City & Cnty.
6 of San Francisco, 77 F. Supp. 3d 867, 883 (N.D. Cal. 2014), aff’d sub nom. Taub v. City
7 & Cnty. of San Francisco, 696 F. App’x 181 (9th Cir. 2017). “To prevail in a viewpoint
8 discrimination claim, a plaintiff must establish that the government took action against it
9 ‘because of not merely in spite of’ its message.” Id. (quoting Moss v. U.S. Secret Serv., 572
10 F.3d 962, 970 (9th Cir. 2009)).
11 Here, Plaintiffs allege the park rangers enforced the Sidewalk Vending Ordinance
12 against Plaintiffs, but not PETA, because Plaintiffs’ speech “was disfavored, while PETA’s
13 speech was favored speech.” (FAC ¶ 82.) Plaintiffs additionally allege that the City
14 informed Dorsett that his “small painting setup” was impermissibly “obstructing a public
15 sidewalk in El Prado” “even though it left ample room on the sidewalk for members of the
16 public to walk around him,” while the City allowed PETA to take up “more than 400-
17 square-feet of a public walkway, also in the El Prado area . . . that in fact did obstruct the
18 public walkway.” (Id. ¶ 44.) In its motion to dismiss, Defendant does not dispute that PETA
19 and Plaintiffs were treated differently. (Doc. No. 6 at 15.) Instead, Defendant argues the
20 difference in treatment was because “PETA is . . . a worldwide animal rights organization
21 whose advocacy activities fall under the City’s [E]xpressive [A]ctivity [O]rdinance,”
22 whereas Plaintiffs’ activities were subject to the Sidewall Vending Ordinance. (Id.)
23 As articulated above, both Dorsett and Flores alleged to have also been engaged in
24 expressive activity protected by the First Amendment. See Santopietro, 73 F.4th at 1023;
25 White, 500 F.3d at 954. Defendant does not assert any other reason other than the nature of
26 Plaintiffs’ expressive activity to justify the difference in treatment. For example, Defendant
27 does not assert that PETA had applied for and received a permit to protest in El Prado or
28 that unlike PETA, Plaintiffs’ tables were more obstructive to traffic flow. (See generally
1 Doc. No. 6, 9.) Accordingly, Plaintiffs sufficiently allege that the City took action against
2 Plaintiffs because of the content of their expressive activity, “not merely in spite of it.” See
3 Hightower, 77 F. Supp. 3d at 883 (internal quotation marks and citation omitted). Plaintiffs’
4 First Amendment selective enforcement claim withstands Defendant’s challenge at the
5 motion to dismiss stage.
6 For the reasons above, Defendant’s motion to dismiss Plaintiffs’ as-applied First
7 Amendment Challenge to the Sidewalk Vending Ordinance is DENIED.
8 C. Plaintiffs’ Fourteenth Amendment Equal Protection Claim (Count 2)
9 Plaintiffs allege that the City prohibited Plaintiffs from performing their art in
10 Balboa Park on El Prado without a permit, but allowed PETA to gather in the same space,
11 violating Plaintiffs’ right to equal protection of the laws under the Fourteenth Amendment.6
12 (FAC ¶¶ 77–86.) Specifically, Plaintiffs allege that the City selectively enforced the
13 Sidewalk Vending Ordinance by allowing PETA to “take up more than 400-square-feet of
14 a public walkway, also in the El Prado area of Balboa Park” (id. ¶ 44), because “PETA’s
15 speech was favored speech” (id. ¶ 81), while prohibiting Plaintiffs, including citing Flores,
16 from occupying the same space without a permit “because their speech was disfavored”
17 (id. ¶¶ 36, 82, 83). Plaintiffs additionally allege that the City’s selective enforcement “was
18 the result of an intentional policy or practice to limit [Plaintiffs’] speech, while promoting
19 more favored speech.” (Id. ¶¶ 79, 82.) The City disputes that Plaintiffs and PETA are
20 “similarly situated,” (Doc No. 6 at 15), arguing that PETA is “a worldwide animal rights
21 organization whose advocacy activities fall under the City’s [E]xpressive [A]ctivity
22 [O]rdinance,” whereas Plaintiffs’ activity falls under the Sidewalk Vending Ordinance, (id.
23 at 12, 15).
24 “The Equal Protection Clause of the Fourteenth Amendment commands that no State
25 shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
26 essentially a direction that all persons similarly situated should be treated alike.” City of
27
28
1 Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “In order for a state
2 action to trigger equal protection review at all, that action must treat similarly situated
3 persons disparately.” Barnes-Wallace v. City of San Diego, 704 F.3d 1067, 1084 (9th Cir.
4 2012) (quotation marks and alteration notations omitted).
5 “The first step in equal protection analysis is to identify the state’s classification of
6 groups.” Country Classic Dairies, Inc. v. State of Mont., Dep’t of Com. Milk Control
7 Bureau, 847 F.2d 593, 596 (9th Cir. 1988). The Sidewalk Vending Ordinance classifies
8 individuals engaging in “vending” into two groups: sidewalk vendors and individuals
9 engaged in expressive activity protected by the First Amendment. (Doc. No. 6 at 13.)
10 SDMC § 36.0102 defines “sidewalk vendors” as individuals “who sell goods . . . from
11 vending equipment . . . upon a sidewalk.” (Id. at 12) (quoting SDMC § 36.0102). “Vending
12 equipment” includes “any conveyance, table, pushcart, stand, display, pedal-driven cart,
13 wagon, showcase, rack, or any other free-standing equipment used for vending on the
14 sidewalk.” (Doc. No. 5-2 § 36.0102.) By contrast, at the time Plaintiffs were cited, the
15 Sidewalk Vending Ordinance exempted “any vendor or individual engaged solely in
16 artistic performances, free speech, political or petitioning activities, or engaged solely in
17 vending of items constituting expressive activity protected by the First Amendment . . . [.]”
18 (Id. § 36.0113.)7
19 Because the FAC alleges Plaintiffs and PETA were both engaged in expressive
20 activity protected by the First Amendment, see Santopietro, 73 F.4th at 1023; White, 500
21 F.3d at 954, the FAC sufficiently alleges that Plaintiffs and PETA were similarly situated
22 yet treated differently. (See generally FAC ¶¶ 44, 77–86.) Additionally, while a distinction
23 in treatment may have been justified if PETA had a permit to engage in expressive activity
24 in the El Prado area, which Plaintiffs did not possess, Defendant has neither argued nor
25
26
7 The City represents that in 2024, the City amended the Sidewalk Vending Ordinance’s “Non-
27
Applicability” exemption, which “currently states that ‘any person engaged in expressive activity
28 authorized by Chapter 6, Article 3, Division 5 of this Code [the Expressive Activity Ordinance]’ is exempt
1 provided any evidence that PETA had a permit to demonstrate. (See generally Doc. Nos.
2 6, 9.) What’s more, Defendant asserts that even had Plaintiffs applied for a permit to busk
3 on El Prado, they would have been denied, further suggesting a possible difference in
4 treatment. (See Doc. No. 9 at 9 (“Even if Plaintiffs had attempted to obtain a permit to . . .
5 perform on El Prado, neither would have been granted a permit.”).) While discovery may
6 elucidate distinctions between PETA’s demonstration and Plaintiffs’ conduct that justify
7 disparate treatment, at this stage the Court must accept Plaintiffs’ allegations as true.
8 Accordingly, Plaintiffs have sufficiently pled an Equal Protection Claim under the
9 Fourteenth Amendment that survives Defendant’s motion to dismiss.
10 The Court DENIES Defendant’s motion to dismiss Plaintiffs’ Fourteenth
11 Amendment Equal Protection claim at this stage.
12 D. Plaintiffs’ First Amendment Facial Challenge to the Expressive Activity
13 Ordinance (Count 1)
14 Plaintiffs assert the Expressive Activity Ordinance unconstitutionally forbids the
15 sale of artwork or is impermissibly vague and chills expressive activity in violation of the
16 First Amendment’s Free Speech Clause. (FAC ¶¶ 45–63; Doc. No. 8 at 16.) Defendant
17 argues Plaintiffs’ facial challenge should be dismissed because the Expressive Activity
18 Ordinance is a reasonable time, place, and manner restriction on expressive activity. (Doc.
19 No. 13.) Specifically, Defendant states the Expressive Activity Ordinance furthers “public
20 safety, do[es] not suppress speech, and provide[s] for ample alternative channels for
21 communication.” (Doc. No. 6 at 11.)
22 1. The Expressive Activity Ordinance Regulates Expressive Activity in
23 Public Forums
24 “When analyzing the validity of a regulation under [the Free Speech] Clause, we
25 ‘apply a forum analysis’ whose first step involves determining what type of forum is
26 affected by the regulation.” Santa Monica Nativity Scenes Comm. v. City of Santa Monica,
27 784 F.3d 1286, 1291 (9th Cir. 2015) (quoting Flint v. Dennison, 488 F.3d 816, 830 (9th
28 Cir. 2007)); see also Camenzind v. California Exposition & State Fair, 84 F.4th 1102, 1107
1 (9th Cir. 2023) (“At the threshold, we must specify the contours of the forum at issue.”)
2 “Once the forum is identified, we determine whether [the] restrictions on speech are
3 justified by the requisite [legal] standard.” Santa Monica Nativity Scenes Comm., 784 F.3d
4 at 1291–92 (quoting Flint, 488 F.3d at 830).
5 The Expressive Activity Ordinance seeks to “adopt reasonable regulations on
6 expressive activity” in “parks, plazas, sidewalks and high-traffic areas . . . [.]” (Doc. No.
7 5-3 § 63.0501.) As stated above, “[t]he quintessential traditional public forums are
8 sidewalks, streets, and parks.” Am. C.L. Union of Nevada v. City of Las Vegas, 333 F.3d
9 1092, 1099 (9th Cir. 2003); see also Camenzind, 84 F.4th at 1108 (“Traditional examples
10 of public fora include streets, parks and sidewalks . . . [.]”) Accordingly, the Expressive
11 Activity Ordinance regulates protected expressive activity in traditional public forums.
12 2. Time, Place, and Manner Restriction
13 In traditional public forums, “the rights of the state to limit expressive activity are
14 sharply circumscribed.” Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37,
15 45, (1983). However, “[d]espite the broad First Amendment protection accorded
16 expressive activity in public parks . . . a municipality may issue reasonable regulations
17 governing the time, place or manner of speech.” Berger, 569 F.3d at 1036 (quoting
18 Grossman v. City of Portland, 33 F.3d 1200, 1205 (9th Cir. 1994)); see also Hunt v. City
19 of Los Angeles, 638 F.3d 703, 715 (9th Cir. 2011) (“The time, place, or manner standard
20 applies to fully protected speech in a public forum.”). “[S]treet performances are subject to
21 reasonable time, place, and manner restrictions[.]” Santopietro, 73 F.4th at 1023.
22 Accordingly, Plaintiffs’ expressive activities are subject to reasonable time, place, and
23 manner restrictions. Id.
24 “To pass constitutional muster, a time, place, or manner restriction must meet three
25 criteria: (1) it must be content-neutral; (2) it must be ‘narrowly tailored to serve a
26 significant governmental interest’; and (3) it must ‘leave open ample alternative channels
27 for communication of the information.’” Berger, 569 F.3d at 1036 (quoting Ward v. Rock
28 Against Racism, 491 U.S. 781, 791 (1989)). Because the Expressive Activity Ordinance
1 regulates where individuals can engage in expressive activity with or without a permit, the
2 Court evaluates the Expressive Activity Ordinance under the reasonable “time, place, or
3 manner” restriction framework.
4 i. Content-neutrality
5 “A speech restriction is content-neutral if it is ‘justified without reference to the
6 content of the regulated speech.’” One World One Fam. Now v. City & Cnty. of Honolulu,
7 76 F.3d 1009, 1012 (9th Cir. 1996) (quoting Clark v. Community for Creative Non–
8 Violence, 468 U.S. 288, 293 (1984)). “A regulation that serves purposes unrelated to the
9 content of expression is deemed neutral, even if it has an incidental effect on some speakers
10 or messages but not others.” Ward, 491 U.S. at 791. Additionally, designated “free
11 expression zones” available on a first-come, first-served basis, are content-neutral. See
12 Camenzind, 84 F.4th at 1114 (“Free Expression Zones are content-neutral because they are
13 allocated on a first-come, first-served basis.”). By contrast, a restriction is content-based
14 “if either the main purpose in enacting it was to suppress or exalt speech of a certain
15 content, or it differentiates based on the content of speech on its face.” A.C.L.U. of Nevada
16 v. City of Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006).
17 The City asserts that the Expressive Activity Ordinance is content neutral because
18 “[n]othing in the text of the City’s ordinances cited by Plaintiffs state a preference for a
19 ban on art, magic, or any form of expressive speech.” (Doc. No. 6 at 10.) Plaintiffs plead
20 that the City’s “location-based restrictions . . . turn on the content of . . . Plaintiff’s speech,”
21 (FAC ¶ 41), but do not otherwise respond to how the Expressive Activity Ordinance is
22 content-based.
23 The Expressive Activity Ordinance is content-neutral. First, the Ordinance’s stated
24 purpose is unrelated to any content of expression. (See Doc. No. 5-3, SDMC § 63.0501 (d)
25 (“[T]he purpose of this Division [is] to adopt regulations for persons engaged in expressive
26 activity to protect public health and safety, preserve historic and cultural opportunities, and
27 prevent altercations arising from competing uses of space in parks, plazas, sidewalks, and
28 high-traffic areas.”)) Second, it is undisputed that the City’s designated “expressive
1 activity areas” are available on a first-come, first-served basis, (id. § 63.0504), which the
2 Ninth Circuit determined is content-neutral. See Camenzind, 84 F.4th at 1114.
3 Accordingly, the first factor in the time, place, manner restriction test is met.
4 ii. Narrow Tailoring to Serve a Significant Governmental Interest
5 “Two primary considerations” govern whether a regulation is narrowly tailored to
6 serve a significant government interest: “(1) whether the significant government interest
7 would be achieved less effectively without the regulation; and (2) whether the regulation
8 burdens substantially more speech than necessary.” Porter v. Gore, 517 F. Supp. 3d 1109,
9 1127 (S.D. Cal. 2021), aff’d sub nom. Porter v. Martinez, 64 F.4th 1112 (9th Cir. 2023),
10 and aff’d sub nom. Porter v. Martinez, 68 F.4th 429 (9th Cir. 2023) (citing Ward, 491 U.S.
11 at 798–99). A regulation need not be the “least restrictive” means of serving the relevant
12 government interest to be “narrowly tailored.” Ward, 491 U.S. at 799. “Rather, ‘[s]o long
13 as the means chosen are not substantially broader than necessary to achieve the
14 government’s interest, [ ] the regulation will not be invalid simply because a court
15 concludes that the government’s interest could be adequately served by some less-speech-
16 restrictive alternative.’” Bay Area Peace Navy v. United States, 914 F.2d 1224, 1227 (9th
17 Cir. 1990) (quoting id. at 800). “The government bears the burden of proving that the
18 ‘narrowly tailored’ and ‘alternative communication’ prongs are satisfied.” Bay Area Peace
19 Navy, 914 F.2d at 1227.
20 The City asserts that the City’s ordinances, including the Expressive Activity
21 Ordinance, serve the substantial government interest of preserving public safety and “of
22 preventing congestion . . . by confining distribution, selling, and fund solicitation activities
23 to fixed locations[,]” while still giving Plaintiffs a reasonable opportunity for
24 communication. (Doc. No. 6 at 9 (citing Camenzind, 84 F.4th at 1114 (citations omitted)).)
25 The City does not address whether the Expressive Activity Ordinance is narrowly tailored
26 separate from the Sidewalk Vending Ordinance, which the City argues is narrowly tailored
27 “because the incidental restriction on [] Dorsett’s sale of art is no greater than is essential
28 to further . . . the City’s stated goals.” (Doc. No. 9 at 6.) Plaintiffs plead that the City’s
1 Expressive Activity Ordinance is not narrowly tailored because the designated expressive
2 activity zones are confined to “4-foot by 8-foot marked spaces in undesirable locations[,]”
3 which “severely limit[]” Plaintiffs’ exposure to the public and result in “a dramatic loss of
4 revenue for the plaintiffs due to the reduced exposure to the public.” (See FAC ¶¶ 32, 40,
5 42.)
6 Two cases are instructive for evaluating whether the Expressive Activity Ordinance
7 is narrowly tailored. In Camenzind v. California Exposition & State Fair, the Ninth Circuit
8 determined the free speech zones were narrowly tailored because they were positioned next
9 to the fairground entry gates, “a prime location that provides speakers with exposure to
10 virtually everyone who enters the fairgrounds.” 84 F.4th at 1114. By contrast, in Ponies
11 Are Miserable v. City of Los Angeles, the court found the City of Los Angeles’s “Free
12 Speech Zone” next to a controversial pony ride business in Griffith Park “greatly limit[ed]
13 Plaintiffs’ exposure to their intended audience” where Plaintiffs alleged having “to shout
14 for extended periods of time to attempt to reach distant individuals.” Ponies Are Miserable
15 v. City of Los Angeles, No. 2:23-CV-08330 HDV SK, 2024 WL 5317298, at *3 (C.D. Cal.
16 May 13, 2024). In Ponies are Miserable, the court reasoned, “[a]ccepting these allegations
17 as true, as the Court must for purposes of this [m]otion [to dismiss], the Court cannot say
18 as a matter of law that the Free Speech Zone was narrowly tailored.” Id.
19 Here, one of the City’s stated purposes of the Expressive Activity Ordinance is to
20 “ensure those engaged in expressive activity are able to engage their intended audiences
21 without having to compete with commercial vendors.” (Doc. No. 5-3 § 63.0501(b).) Yet,
22 Plaintiffs allege that in practice, the Expressive Activity Ordinance is not achieving either
23 goal. For example, both Plaintiffs allege “reduced exposure to the public” leading to a
24 “dramatic loss of revenue.” (FAC ¶ 42.) Dorsett alleges that the Ocean Beach expressive
25 activity area was “crowded with vendors selling goods,” (id. ¶ 38), and the Comic Con
26 expressive activity area was “too small to accommodate buskers,” (id. ¶ 39). At the motion
27 to dismiss stage, accepting Plaintiffs’ allegations as true, and construing all inferences in
28 favor of Plaintiffs, without any evidence from the City proving otherwise, the Court cannot
1 conclude as a matter of law that the City’s expressive activity areas are narrowly tailored.
2 See, e.g., Ponies Are Miserable, No. 2:23-CV-08330 HDV SK, 2024 WL 5317298, at *3.
3 iii. Ample Alternative Channels for Communication
4 Finally, “a valid time-place-and-manner regulation must ‘leave open ample
5 alternative channels for communication.’” Hoye v. City of Oakland, 653 F.3d 835, 858 (9th
6 Cir. 2011) (quoting Ward, 491 U.S. at 791). “Several considerations are relevant to this
7 analysis.” Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1025
8 (9th Cir. 2009). Specifically, alternatives are not ample “if the speaker is not permitted to
9 reach the intended audience, if the location of the expressive activity is part of the
10 expressive message, if there is no opportunity for spontaneity, or if the alternatives are
11 overly costly or inconvenient.” Santa Monica Nativity Scenes Comm. v. City of Santa
12 Monica, No. CV 12-8657 ABC (EX), 2012 WL 12850129, at *10 (C.D. Cal. Nov. 29,
13 2012), aff’d, 784 F.3d 1286 (9th Cir. 2015) (summarizing Long Beach Area Peace
14 Network, 574 F.3d at 1025).
15 Here, the City asserts that because Plaintiffs have a “reasonable opportunity” for
16 communication in the designated expressive activity areas, ample alternatives exist for
17 Plaintiffs to communicate with their intended audiences. (Doc. No. 9 at 7–8.) However,
18 Plaintiffs plead that the expressive area zones designated by the City place Plaintiffs in
19 confining, “undesirable locations,” that limit Plaintiffs’ reach to their intended audiences,
20 and that are “crowded” with commercial vendors selling goods, ultimately resulting in
21 Plaintiffs’ “dramatic loss of revenue.” (FAC ¶¶ 35, 38, 40, 42.)
22 Again, examination of analogous case law is instructive. In Camenzind, the Ninth
23 Circuit found that the “Free Expression Zones” provided ample alternative channels for
24 communication because they were “directly outside the entry gates” of the California
25 Exposition and State Fair fairgrounds, offered “a prime location that provide[d] speakers
26 with exposure to virtually everyone who enters the fairgrounds” and the plaintiff was
27 unable to point to any preferable space in the exterior area. Camenzind, 84 F.4th at 1106,
28 1114. By contrast, in Bay Area Peace Navy, the Ninth Circuit found that a 75-yard security
1 zone around the reviewing stand for Navy’s “Fleet Week” in San Francisco did not afford
2 peaceful protestors ample alternative channels of communication, because it prevented
3 them from reaching their intended audience of visitors to Fleet Week. 914 F.3d at 1229.
4 Here, accepting Plaintiffs’ allegations of being relegated to “secluded areas” that resulted
5 in “a dramatic loss of revenue . . . due to the reduced exposure to the public,” (FAC ¶ 42),
6 as true and construing all inferences in favor of Plaintiffs, Plaintiffs sufficiently allege that
7 the Expressive Activity Ordinance does not provide ample alternative channels of
8 communication.
9 While the Expressive Activity Ordinance is content neutral, Defendant has not met
10 its burden of showing that the Expressive Activity Ordinance is narrowly tailored or leaves
11 open ample alternative channels of communication. Defendant’s arguments may be better
12 suited following discovery when the record is more fully developed. Accordingly, the
13 Court finds that Plaintiffs sufficiently plead that the Expressive Activity Ordinance does
14 not constitute a reasonable time, place, and manner restriction. The Court DENIES
15 Defendant’s motion to dismiss Plaintiffs’ First Amendment challenge to the Expressive
16 Activity Ordinance.
17 E. Plaintiffs’ Fourteenth Amendment Due Process Challenge to the
18 Expressive Activity Ordinance and Sidewalk Vending Ordinance (Count
19 3)
20 Plaintiffs challenge both the Expressive Activity Ordinance and Sidewalk Vending
21 Ordinance as unconstitutionally vague in violation of the Due Process Clause of the
22 Fourteenth Amendment. (FAC ¶¶ 19, 87–92.) “An ordinance may be void for vagueness
23 because either it (1) fails to give a ‘person of ordinary intelligence a reasonable opportunity
24 to know what is prohibited;’ (2) ‘impermissibly delegates basic policy matters to
25 policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the
26 attendant dangers of arbitrary and discriminatory application;’ or (3) ‘abut(s) upon
27 sensitive areas of basic First Amendment freedoms, [ ] operat[ing] to inhibit the exercise
28 of (those) freedoms.’” Hunt, 638 F.3d at 712 (quoting Grayned v. City of Rockford, 408
1 U.S. 104, 108 (1972)). “Whether a provision is vague for lack of fair notice is an objective
2 inquiry.” Kashem v. Barr, 941 F.3d 358, 371 (9th Cir. 2019). “[P]erfect clarity and precise
3 guidance have never been required even of regulations that restrict expressive activity.”
4 Holder v. Humanitarian L. Project, 561 U.S. 1, 19 (2010) (quoting United States v.
5 Williams, 553 U.S. 285, 304 (2008)). A court should uphold a vagueness challenge “only
6 if the enactment is impermissibly vague in all of its applications.” Vill. of Hoffman Ests. v.
7 Flipside, Hoffman Ests., Inc., 455 U.S. 489, 495 (1982). By contrast, a court “may reject a
8 vagueness challenge when it is clear what the ordinance as a whole prohibits.” First Resort,
9 Inc. v. Herrera, 860 F.3d 1263, 1274 (9th Cir. 2017). The Court first addresses Plaintiffs’
10 vagueness challenge to the Expressive Activity Ordinance, and then examines Plaintiffs’
11 vagueness challenge to the Sidewalk Vending Ordinance.
12 1. Plaintiffs’ Vagueness Challenge to the Expressive Activity Ordinance
13 Plaintiffs allege that the Expressive Activity Ordinance “fails to give a person of
14 ordinary intelligence a reasonable opportunity to know what is prohibited” and is
15 unconstitutionally vague. (FAC ¶¶ 55, 62, 90 (quoting Hunt v. City of Los Angeles, 638
16 F.3d 703, 712 (9th Cir. 2011)).) First, Plaintiffs allege that the terms “merchandise” and
17 “mass-produced” are not defined, muddying what kind of merchandise is subject to
18 regulation. (FAC ¶ 91.) Second, Plaintiffs allege that the Expressive Activity Ordinance is
19 “internally contradictory” in that it “refers to regulation of ‘mass produced’ items that are
20 made through ‘the use of brush, pastel, crayon, pencil, stylus or other object.’” (Id.)
21 Plaintiffs allege that the overall lack of clarity enables City officials and law enforcement
22 to arbitrarily enforce the law. (Id. ¶¶ 55, 62, 90, 91.)
23 Both Plaintiffs allege specific points of confusion. Dorsett alleges the Expressive
24 Activity Ordinance’s definition of “expressive activity” includes “the sale of artwork,” but
25 excludes “the sale or creation of handcrafts” and “the creation or sale of mass-produced
26 merchandise or visual art.” (Id. ¶¶ 46–51; see also Doc. No. 5-3, SDMC § 63.0502.) Dorsett
27 alleges it is unclear to what extent, if any, his paintings may be considered “mass-
28 produced,” and whether his palm frond roses fit the definition of “handcrafts” such that he
1 would be subject to the Sidewalk Vending Ordinance as a vendor rather than the Expressive
2 Activity Ordinance as an artist. (FAC ¶¶ 46–51.)
3 Flores alleges similar confusion as to whether his magic show performances are
4 considered “expressive activity.” (Id. ¶¶ 46, 52–53.) The Expressive Activity Ordinance
5 includes “performances” within the definition of “expressive activity.” (Doc. No. 5-3,
6 SDMC Art. 3, Div. 5 § 63.0502.) However, it also stipulates that “[v]endors of . . . services
7 shall comply with the Sidewalk Vending Regulations,” (id. § 63.0505), and defines
8 “services” as having the same meaning as in SDMC section 36.0102. (Id. § 63.0502.)
9 SDMC Section 36.0102 defines “services” as “activities involving the performance of
10 work for others or the provision of intangible items that cannot be returned once they are
11 provided . . . includ[ing] hair braiding, face painting, massage, yoga, fortune telling,
12 tattooing, and dog training.” (Doc. No. 5-2, SDMC § 36.0102; see also FAC ¶¶ 46, 52–
13 53.)
14 In Defendant’s motion to dismiss, the City argues that the Expressive Activity
15 Ordinance is well-defined and therefore constitutional. The City asserts, “Plaintiff Dorsett
16 was plainly vending on February 1, 2023,” so “he was subject to the City’s vending
17 ordinances” rather than the Expressive Activity Ordinance. (Doc. No. 6 at 12.) The City
18 does not address Flores’s vagueness challenge of whether magic performances are
19 considered “expressive activity” under the Expressive Activity Ordinance. (See generally
20 id. at 12–13.)
21 The Court interprets the Expressive Activity Ordinance according to its text and ends
22 there if the language is plain. Bostock v. Clayton County, 590 U.S. 644, 674 (2020). Here,
23 the plain text of the Expressive Activity Ordinance defines “expressive activity” to include
24 “the sale of artwork.” (See Doc. No. 5-3, SDMC § 63.052.) The Court therefore rejects the
25 City’s argument that Dorsett’s selling of original art is “clearly exclude[d]” from the
26 purview of the Expressive Activity Ordinance. (Doc. No. 6 at 12.) However, to the extent
27 Dorsett alleges selling both original paintings and palm frond roses, which could be
28 considered a “handcraft” excluded from the definition of “expressive activity,” the
1 Expressive Activity Ordinance does not clearly define whether he may sell both original
2 paintings and palm frond roses within an expressive activity area without a permit, or
3 whether selling palm frond roses categorizes Dorsett as a vendor, requiring Dorsett to
4 adhere to the Sidewalk Vending Ordinance’s requirements, including applying for a
5 vending permit. Dorsett sufficiently alleges that the lack of guidance could subject
6 individual buskers to arbitrary enforcement. See Hunt, 638 F.3d at 712.
7 As to Flores, neither “magic shows” nor “juggling” appear in the Expressive Activity
8 Ordinance’s definition of “expressive activity.” (See Doc. No. 5-3, SDMC
9 § 63.052.) And neither activity appears in the enumerated list of “services,” which are
10 subject to the Sidewalk Vending Ordinance, either. (See No. 5-2, SDMC § 36.0102.) The
11 Court finds that magic shows and juggling are sufficiently similar to face painting and
12 fortune telling, which the Expressive Activity Ordinance defines as “services,” such that a
13 person of ordinary intelligence may be confused as to what forms of street performances
14 are excluded from the Expressive Activity Ordinance, and which are covered.8
15 Because Plaintiffs adequately plead how the Expressive Activity Ordinance may fail
16 to give a “person of ordinary intelligence a reasonable opportunity to know what is
17 prohibited,” Hunt, 638 F.3d at 712, and “when First Amendment freedoms are at stake, an
18 even greater degree of specificity and clarity of laws is required,” Foti, 146 F.3d at 638,
19 the Court finds that Plaintiffs adequately allege that the Expressive Activity Ordinance is
20 impermissibly vague.
21 The Court DENIES Defendant’s motion to dismiss Plaintiffs’ Fourteenth
22 Amendment Due Process challenge to the Expressive Activity Ordinance.
23 2. Plaintiffs’ Vagueness Challenge to the Sidewalk Vending Ordinance
24
25
8 Further illustrating discrepancies in the definitions of “expressive activity” and “services” amongst the
26 two Ordinances, the Expressive Activity Ordinance enumerates that “face painting” is an “[i]tem[] . . .
inherently communicative in nature” that constitutes “expressive activity.” (Doc. No. 5-3, SDMC
27
§ 63.052.) However, the Sidewalk Vending Ordinance includes “face painting” as one of several
28 “[s]ervices” excluded from “expressive activity” in the Expressive Activity Ordinance. (Doc. No. 5-2,
1 Plaintiffs also allege that the Sidewalk Vending Ordinance is “impossibly vague”
2 because the “Non-Applicability” exemption left “individuals of ordinary intelligence”
3 unsure of what activity was subject to the Sidewalk Vending Ordinance (including its
4 permit requirement), and which activities were exempt. (FAC ¶¶ 19, 92.) The City responds
5 that the “Non-Applicability” exemption “has been amended since Plaintiff Dorsett was
6 cited” and “currently states that ‘any person engaged in expressive activity authorized by
7 Chapter 6, Article 3, Division 5 of this Code [the Expressive Activity Ordinance]’ is
8 exempt from the permit requirements.” (Doc. No. 9 at 6.) That is, individuals are exempt
9 from the Sidewalk Vending Ordinance’s permit requirements to the extent they engage in
10 expressive activity in one of the City’s designated expressive activity areas. (Id.)
11 Here, because the parties do not dispute that the City has amended the challenged
12 “Non-Applicability” exemption to stipulate that individuals engaged in expressive activity
13 may do so in an expressive activity area designated by the City without a permit, the Court
14 finds Plaintiffs’ vagueness challenge moot. See Dep’t of Fish & Game v. Fed. Subsistence
15 Bd., 62 F.4th 1177, 1181 (9th Cir. 2023) (“Generally, an action is mooted when the issues
16 presented are no longer live and therefore the parties lack a legally cognizable interest for
17 which the courts can grant a remedy.”) Even if the mootness doctrine did not apply, the
18 plain language of the Sidewalk Vending Ordinance’s “Non-Applicability” section was not
19 vague. It clearly exempted artistic expression and street performances as First Amendment
20 protected activity. (See Doc. No. 5-2, SDMC § 36.0113.)
21 Accordingly, the Court DISMISSES Plaintiffs’ due process vagueness challenge to
22 the Sidewalk Vending Ordinance WITHOUT LEAVE TO AMEND. See Wheeler v. City
23 of Santa Clara, 894 F.3d 1046, 1059 (9th Cir. 2018) (“Leave to amend may be denied if
24 the proposed amendment is futile or would be subject to dismissal.”).
25 V. CONCLUSION
26 For the reasons stated herein, the Court DENIES Defendant’s motion to dismiss as
27 to Plaintiffs’ First Amendment claim (Count 1), Fourteenth Amendment Equal Protection
28 claim (Count 2), and Plaintiffs’ Fourteenth Amendment Due Process claim with respect to
1 Expressive Activity Ordinance (Count 3). The Court GRANTS Defendant’s motion to
2 ||dismiss Plaintiffs’ Fourteenth Amendment Due Process vagueness challenge to the
3 || Sidewalk Vending Ordinance (FAC 4 92), and DISMISSES Plaintiffs’ claim as moot and
4 || WITHOUT LEAVE TO AMEND. The City must file an answer to Plaintiffs’ FAC no
5 || later than March 24, 2025.
6 IT IS SO ORDERED.
7
8
9 Dated: February 24, 2025 | ZS rz □ Ze
10 Hon. Anthony J attaglia
United States District Judge
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