San Diego Municipal Code Div. 5 Expressive Activity on Public Property

(“Expressive Activity on Public Property” added 2-28-2024 by O-21775 N.S.; effective 3-29-2024.)

(a) The Council finds the City is committed to protecting and preserving the rights of persons engaged in expressive activity on public property, as protected by the First Amendment to the United States Constitution and by the California Constitution. City parks, plazas, and sidewalks have served as a traditional forum for performances, visual artists, and other expressive activity. Unregulated expressive activity has led to challenges for first responders to access emergency situations, has intensified competing interests in available space, and has increased the incidents of physical altercations among sidewalk vendors and persons engaged in expressive activity. Unregulated expressive activity has also limited the accessibility of common walkways and the safe flow of pedestrian and other traffic in some areas.

(b) The Council further finds that certain parks, plazas, and high-traffic areas
constitute major tourist attractions, host significant numbers of people
annually, and contain limited geographic space. Visitors, tourists, sidewalk
vendors, and people engaged in expressive activity compete for space in these
locations. The Council finds that authorizing the City Manager to designate
areas for persons engaged in expressive activity using equipment or furniture
in certain parks, plazas, and high-traffic areas will reduce tensions and
physical altercations associated with competing for limited space, and will
ensure those engaged in expressive activity are able to engage their intended
audiences without having to compete with commercial vendors. Additionally,
the ability to designate expressive activity areas in certain parks, plazas, and
high traffic areas where daily visitation is significant and where the
proliferation of commercial activity potentially interferes with historic and
cultural opportunities and preservation activities is necessary to protect and
preserve these areas for everyone.

(c) The Council further finds it necessary to adopt reasonable regulations on
expressive activity to address the competing interests and uses of public
property, including parks, plazas, sidewalks and high-traffic areas, with the
City’s need to preserve public health and safety, and to preserve access to and
enjoyment of public property.

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(d) It is the purpose of this Division to adopt regulations for persons engaged in
expressive activity to protect public health and safety, preserve historic and
cultural opportunities, and prevent altercations arising from competing uses of
space in parks, plazas, sidewalks, and high-traffic areas. This Division does
not apply to sidewalk vendors.
(“Finding and Purpose” added 2-28-2024 by O-21775 N.S.; effective 3-29-2024.)

For purposes of this Division, defined terms appear in italics. The following definitions apply in this Division:

Above-ground structure means any structure affixed to a sidewalk or other walkway owned, maintained, or authorized by the City, including a street light, tree well, parking meter, utility structure, utility box, bike rack, scooter corral, mailbox, trash can, elevator, kiosk, newspaper rack, picnic shelter, bench, table, wall, sign pole, traffic signal pole, signal push button pole, and stairs.

Expressive activity means all forms of speech and expressive conduct, including (1) the distribution of non-commercial information; (2) solicitation of funds, donations, subscriptions, or signatures for a charity, religious organization, non-profit organization, or government entity; (3) performances; and (4) the sale of artwork, recordings of performances, or other items that are inherently communicative in nature and have only nominal value or purpose apart from its communication. Items that are inherently communicative in nature include newspapers, leaflets, pamphlets, bumper stickers, buttons, books, audio, video, compact discs, video discs, records, visual art sold by the artist, including prints of the artist’s visual art, political campaigning activity such as distribution of campaign signs, stickers, or other campaign materials, face painting, and painting henna tattoos. Expressive activity does not include: the sale of food; the sale or creation of handcrafts, skin care and beauty products; the sale of natural found items, such as stones and gems; the provision of personal services, such as massage or hair styling; the application of substances or handcrafts to others such as piercings or skin care products; teaching yoga or exercise classes; or the creation or sale of mass-produced merchandise or visual art.

Expressive activity area means areas within parks, plazas, and high-traffic areas designated by the City Manager pursuant to section 65.0504 of this Code.

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Handcrafts means objects made either by hand or with the help of devices used to shape or produce the objects through such methods as weaving, carving, stitching, sewing, lacing, welding, or beading, including necklaces, earrings, bracelets, rings, and other jewelry used or intended for personal adornment, pottery, silver or metal work, leather goods, and trinkets. Handcrafts are objects not likely to communicate a message, idea, or concept to others, are often mass-produced or produced with limited variation, and often have functional utility apart from any communicative value they might have.

High-traffic areas means the following bike and shared-use paths: Bayside Walk; Bayshore Bikeway; Coast Boulevard Boardwalk between Jenner Street and Cuvier Street, including popouts; Crown Point Bike Path; La Jolla Shores Boardwalk; Liberty Station NTC Path; Mission Bay Bike Path; MLK Promenade; Ocean Boulevard Bike Path; Ocean Beach Bike Path; Ocean Front Walk; San Diego River Bike Path; Scripps Park Boardwalk, which runs along the perimeter of Ellen Browning Scripps Park; and the following sidewalks: Columbia Street; Kettner Boulevard; India Street between Ash Street and West Kalmia Street; and San Diego Avenue between Conde Street and Twiggs Street.

Park has the same meaning as in San Diego Municipal Code section 63.0102.

Plaza has the same meaning as in San Diego Municipal Code section 36.0102.

Services has the same meaning as in San Diego Municipal Code section 36.0102.

Sidewalk has the same meaning as in San Diego Municipal Code section 36.0102.

Visual art means sculptures, drawings, or paintings applied to paper, cardboard, canvas, or other similar or equivalent medium through the use of brush, pastel, crayon, pencil, stylus, or other object. (“Definitions” added 2-28-2024 by O-21775 N.S.; effective 3-29-2024.)

(a) Applicability. This Division applies to persons engaged in expressive activity alone or in small groups. It does not apply to spontaneous expressive activity by large groups, such as parades and protests, or to permitted events.

(b) Any person engaged in expressive activity shall not:

(1) occupy a space greater than eight feet in length or four feet in width,
including any equipment or display, unless the person is in an
expressive activity area where a larger space has been set aside for
expressive activity by the City Manager;

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(2) display any merchandise for sale on the ground or on any above-
ground structure;

(3) conduct expressive activity in a way that blocks the safe flow of
pedestrians or other traffic or that blocks designated emergency
ingress or egress routes, including blocking the sidewalk in a manner
that reduces the useable sidewalk area to less than 48 inches; or

(4) attach any equipment, display, or merchandise to any utility pole,
street sign, bus stop, trash can, traffic pole, or other public structure.

(c) All persons engaged in expressive activity using amplification or non-
amplified sound-making devices, such as speakers, microphones, or public
address systems, shall comply with section 59.5.0502(f) of this Code at all
times, unless the person is in an expressive activity area where louder
amplification has been authorized for expressive activity by the City Manager.

(“Expressive Activity Generally” added 2-28-2024 by O-21775 N.S.; effective
3-29-2024.)

(a) The City Manager may designate expressive activity areas that shall be available, on a first-come, first-served basis, to persons who desire to use equipment, including a table, easel, stand, chair, umbrella, sunshade, or other furniture as part of their expressive activity. Expressive activity areas may be established within a park, plaza, or other high-traffic area when the City Manager determines one or more of the following is true:

(1) there is a substantial interest in designating expressive activity areas to
provide for safe ingress and egress of people and emergency and
public safety vehicles and personnel based on the existing paths of
travel and emergency and public safety access routes within a specific
area of the park, plaza, or high-traffic area;

(2) the capacity of the park, plaza, or high-traffic area and the daily
visitation rates are likely to create significant congestion on roads and
walkways such that paths of travel are likely to be impassable or
unsafe;

(3) the natural or developed landscape could be damaged as a result of
continual use for expressive activity if not contained to specific areas
within the park, plaza, or high-traffic area; or

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(4) there is a substantial interest in designating expressive activity areas
adjacent to events occurring in a park, plaza, or high-traffic area,
including private events and special events permitted pursuant to
Chapter 2, Article 2, Division 40 of this Code, when the City Manager
determines expressive activity areas are necessary to provide for safe
ingress and egress of persons and use of emergency and public safety
access routes in and around the event.

(b) If the City Manager designates expressive activity areas within a park, plaza,
or high-traffic area, all persons engaged in expressive activity who use
equipment, including a table, easel, stand, chair, umbrella, sunshade, or other
furniture as part of their expressive activity, shall confine their activities to
one of the expressive activity areas.

(c) Expressive activity areas shall be used for expressive activity only. No person
shall engage in sidewalk vending regulated by Chapter 3, Article 6,
Division 1, or sell any food, handcraft, or mass-produced visual art that does
not constitute expressive activity within an expressive activity area.

(d) A person may only use one expressive activity area at a given time.

(e) No person shall purchase, sell, barter, or exchange any space within an
expressive activity area with another person or reserve or hold space within an
expressive activity area for another person.

(f) Any person who fails to comply with this section 63.0504 may be asked to
leave the expressive activity area and may be subject to the penalties and fines
in section 63.0506.
(“Expressive Activity Areas” added 2-28-2024 by O-21775 N.S.; effective
3-29-2024.)

Vendors of handcrafts or mass-produced visual art and vendors of services shall comply with the Sidewalk Vending Regulations in Chapter 3, Article 6, Division 1, for all vending activities in parks, plazas, beach areas, and on sidewalks that are not otherwise authorized by a special event permit, lease, or other advance written approval by the City Manager. (“Services and Sales of Handcrafts and Mass-Produced Visual Art” added 2-28-2024 by O-21775 N.S.; effective 3-29-2024.)

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(a) Any violation of this Division shall be subject to the following:

(1) an administrative citation and $100 penalty for a first violation.

(2) an administrative citation and $200 penalty for a second violation
within one year of the first violation.

(3) an administrative citation and $500 penalty for a third and each
subsequent violation within one year of the first violation.

(b) Administrative citations may be appealed pursuant to Chapter 1, Article 2,
Division 5 of this Code and all appeals shall be conducted in accordance with
Chapter 1, Article 2, Division 4.

(1) In addition to the powers conferred upon the enforcement hearing
officer under section 12.0407 of this Code, such officer shall take into
consideration the person’s ability to pay the fine upon their request. If
the enforcement hearing officer finds the person meets the criteria
described in California Government Code section 68632(a) or (b), or
any successor section, the enforcement hearing officer shall order the
City to accept, in full satisfaction, 20 percent of the administrative fine
imposed pursuant to this Division.

(2) The enforcement hearing officer shall have the authority to allow the
person to complete community service in lieu of paying the total
administrative fine.
(“Penalties and Fines” added 2-28-2024 by O-21775 N.S.; effective
3-29-2024.)

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Article 3: Public Parks, Playgrounds, Beaches, Tidelands and other Property