SAN DIEGO — A painter and a magician’s lawsuit challenging the city of San Diego’s laws regulating sidewalk vending and busking will move forward after a federal judge on Monday denied the city’s efforts to dismiss the claims.
In their complaint filed in May 2024, William Dorsett and Rogelio Flores describe themselves as buskers — people who entertain others in the street or other public places for donations. Dorsett is a painter and a palm frond rose artist. Flores is a juggler and magician.
In 2022, a city law came into effect that required all sidewalk vendors to get a permit from the city before they sold their goods on any sidewalk. The law includes an exemption for people “engaged solely in artistic performances, free speech, political or petitioning activities, or engaged solely in vending of items constituting expressive activity protected by the First Amendment.”
In March 2024, the city added another law that grants the city manager the power to designate “expressive activity areas” to people who want to engage in expressive activity without a permit but need various pieces of furniture like tables and stands and umbrellas to do it.
In other words, the law exempts people from having to get permits if they are expressing their First Amendment rights in areas the city designated specifically for “expressive activity.”
In February 2023, Dorsett was cited by law enforcement for selling his art without a permit on a public sidewalk in the Ocean Beach neighborhood. In November 2023, Flores was cited three times for performing magic in Balboa Park.
Both Dorsett and Flores filed suit, claiming that the city’s laws trampled their First Amendment rights and that the laws were written in a vague and contradictory manner in violation of the due process clause of the Fourteenth Amendment.
The city also violates the equal protection clause of the Fourteenth Amendment by selectively enforcing the laws, Dorsett and Flores claim, by allowing groups like PETA to table and demonstrate in Balboa Park, seemingly without a permit.
In their motion to dismiss their claims, the city argued that Dorsett and Flores were cited because they were busking in designated fire lanes.
U.S. District Judge Anthony J. Battaglia, a Barack Obama appointee, didn’t buy that argument.
Dorsett and Flores said they were not cited for blocking fire lines and the city did not provide undisputed evidence that they were cited for that reason, Battaglia wrote in his order.
“That Flores alleges he ‘was busking in Balboa Park on El Prado’, does not end the inquiry because the city of San Diego appears to have designated two ‘expressive activity areas’ immediately adjacent to El Prado’s fire lanes (areas 7 and 8), and two additional ‘expressive activity areas’ immediately between two fire lanes in Balboa Park’s Plaza de Panama, (areas 9 and 10), demonstrating that some expressive activity may be permissible in the same area,” Battaglia wrote.
Other municipalities have similar laws regulating where people can use their constitutionally protected First Amendment rights in busy public areas, but case law says that those regulations must allow people to reach those with whom they want to communicate. This means individuals using their First Amendment rights can’t be put into secluded areas, Battaglia wrote.
Dorsett claims that he tried to set up near San Diego Comic Con a day before the event but was told by City Chief Park Ranger to move to an expressive activity area, which turned out to be a muddy grassy area that was too small to fit buskers.
Dorsett has sufficiently claimed that the city’s laws do not provide “ample alternative channels of communication” for buskers, Battaglia wrote.
Dorsett and Flores also sufficiently alleged that the city cited them for their expressive activity, because the city argued that they treated PETA demonstrators differently than buskers because PETA is a well known animal rights organization that meets the exemptions in the city’s “express activity ordinance” and sidewalk vending rules, Battaglia wrote.
The plaintiffs have sufficiently alleged that the city’s laws are too vague, Battaglia added, because it’s not clear whether Dorsett can sell his original painting and palm frond roses without a permit, or whether that makes him a vendor, or whether Flores can perform his magic shows or juggling performances.
Battaglia did grant the city’s request to dismiss the the plaintiffs’ claim that one of the laws was too vague because it left people “of ordinary intelligence” confused about what activity was allowed.
The city amended that law since Dorsett was cited. The law now states people are exempt from the law’s permit requirements if they engage in expressive activity in one of the city’s designated “expressive activity areas.”
“We’re really excited about the result and looking forward to moving on with litigation,” said Jeremiah Daniel Graham of JD Graham Legal, Dorsett and Flores’ attorney. “We’ve been waiting for this ruling for months. Now we can move forward with discovery and prepare the case for trial.”
This is an important case, Graham added, since other buskers are being affected by the city’s enforcement of these laws.
Dorsett is the plaintiff in a similar case challenging the city’s century old law prohibiting vulgar and offensive language in public spaces.
“I’m hoping that this will change the way law enforcement, particularly park rangers, treat buskers. We aren’t treated very well. They consistently try to criminalize everything that we do,” Dorsett said about his suit challenging the vending and busking laws. “They’re just trying to criminalize everything that we do because they don’t like that we use our First Amendment rights to challenge them.”
Representatives of the City of San Diego did not immediately respond to a request for comment.