Friday, January 23, 2026
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Law Prevents Cities From Regulating Hours of Street Vendors Differently From Stores—C.A.
Opinion Says Section Applies Even if There Are Real Dissimilarities Between Types of Sellers, Objective Reasons to Impose Additional Restrictions on Sidewalk Trade
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday that a trial judge erred in denying a street vendor’s request for a preliminary injunction in a case seeking to enjoin enforcement of a San Diego ordinance scheme precluding sidewalk sellers from, among other things, operating in the area around the city-owned Petco Park stadium for the hours before and after Padres games and other popular events.
Pointing to Government Code §51038(c)(1), which was adopted in 2018 as part of a larger statutory scheme designed to limit municipal restrictions on street vending, the court declared that the statute requires that vendors be treated the same as traditional brick and mortar stores as to allowable hours of operation regardless of the realities of sidewalk traffic or other concerns underpinning the regulation. That section provides:
“In nonresidential areas, any limitations on the hours of operation for sidewalk vending shall not be more restrictive than any limitations on hours of operation imposed on other businesses or uses on the same street.”
Justice Julia C. Kelety authored yesterday’s opinion, joined in by Acting Justice Terry B. O’Rourke and Justice Martin N. Buchanan, in which she declared:
“[T]he City asserts that sidewalk vendors are categorically different from brick and mortar business as they contribute to congestion on the sidewalk around Petco. While this may be true, [§51038(c)(1)] nevertheless precludes the City from placing ‘…more restrictive…limitations on hours of operation [than those] imposed on other businesses…on the same street.’ Certainly, the Legislature recognized the differences between sidewalk vendors and brick and mortar businesses when including this provision in Senate Bill No. 946.”
Rejecting the city’s assertion that another provision, §51038(b)(2)(B), makes clear that “a local authority may adopt additional restrictions regulating the time, place, and manner of sidewalk vending in a park owned…by the local authority” if such regulations are “[d]irectly related to objective health, safety, or welfare concerns,” Kelety wrote:
“[W]e conclude that courts must consider the prohibition on limiting vendors’ hours of operation as set forth in…[§51038(c)(1)] in addition to the general ‘objective health, safety, or welfare concerns’ requirement when considering whether an hours-based restriction on sidewalk vending…violates state law.”
Appealing the order denying his request for a preliminary injunction was Imhotep Mustaqeem, a licensed street vendor who has operated a business selling packaged snacks on the sidewalk outside Petco Park since 2009.
In 2022, the City of San Diego enacted a set of ordinances targeting street vendors, including Municipal Code §36.0106(a)(6), which precludes sellers from making sales in “the Ballpark District during an event or game or within three hours before or one hour after an event or game.” The restricted zone covers 40 blocks surrounding the stadium.
Multiple Citations
Mustaqeem received multiple citations for violating the municipal regulatory scheme between June and July 2024, including one for violating §36.0106(a)(6), and the city confiscated the goods he was offering for sale as well as $1,200 in cash under a provision purportedly authorizing such impoundment.
The plaintiff filed a verified petition for writ of mandate and complaint for injunctive and declaratory relief against the city that August. He moved for preliminary relief in November, seeking an injunction barring San Diego from enforcing certain of the regulations based on §51038 and other related provisions.
San Diego Superior Court Judge Carolyn M. Caietti denied the request in January of last year, saying that given the “questionable likelihood of [Mustaqeem] prevailing on the merits, the Court finds the equities favor the City.” She explained:
“The challenged restrictions are primarily targeted at limiting sidewalk vendors during high-traffic times and around high traffic places. While [Mustaqeem] contends that such a time restriction is prohibited by [§51038(c)(1)]…, the Court is not convinced this prohibition should be construed so broadly, as it would largely invalidate the very type of limited restrictions that are allowed under the statute to protect the public’s health, safety and welfare.”
Traditional Venue
Kelety wrote:
“Public sidewalks…are a traditional venue for selling newspapers and other wares, but cities also have a long recognized interest in placing restrictions on the [their] use…, often spurring litigation over the balance between vendors and cities….This case presents one such conflict….”
She continued:
“Contrary to the plain language of [§51038(c)(1)], [§36.0106(a)(6)] places a direct limitation on the hours that sidewalk vendors can vend….There is no dispute that brick and mortar businesses, including businesses within the Ballpark District like 7-Eleven that sell items similar to Mustaqeem’s, do not have any such limitation on their hours of operation.”
Saying that “[t]he trial court acknowledged this specific problem,” she opined:
“The trial court’s hesitance to construe Government Code section 51038, subdivision (c)(1)(A) ‘so broadly’ effectively invalidates the plainly stated prohibition against placing more restrictive limitations on the hours of operation on sidewalk vendors as compared to other business, so long as those restrictions meet the ‘objective health, safety, or welfare’ requirement stated elsewhere in the statute.”
Cannot Simply Ignore
Rejecting this approach, she said that “[w]e cannot simply ignore [§51038(c)(1)] by reading the more general ‘health, safety and welfare’ provisions so broadly as to render this specific prohibition meaningless” and that the court must follow the guidance of the more specific statute.
Also taking issue with the “40-block” span of the Ballpark District, she noted that “there are numerous other, more targeted provisions that are more narrowly and objectively aimed at ensuring safe passage of pedestrians” and that “the vast majority of the area in which vending is prohibited does not fall within a park owned or operated by the City.”
The jurist acknowledged that “counsel informed this court that the trial court may issue a final decision on the merits of Mustaqeem’s petition and complaint in the coming weeks, which would moot any preliminary injunction issued as a result of the present appeal” but remarked that “both parties indicated a preference for resolution of these issues by this court at this juncture.”
Trial Court Deference
She declared:
“We defer to the trial court in making factual findings…, but clarify that the City must demonstrate a direct relationship to objective health, safety, or welfare concerns to justify any restriction on sidewalk vending, and that the court must also consider the additional limitation on time restrictions set forth in Government Code section 51038, subdivision (c)(1)(A) when analyzing any specific hours-based restriction.”
Kelety also commented that “we conclude there is a substantial likelihood that Mustaqeem will succeed on the merits of his claim that the City does not have the authority to impound sidewalk vendor equipment” as the remedy is not one of the enumerated penalties in the statewide statutory scheme. She wrote:
“Having now concluded that the trial court erred in its analysis of the underlying statutes and, therefore, its conclusion that Mustaqeem had not established a likelihood of success on the merits, we remand the matter to the trial court for further proceedings consistent with this opinion. Although our review of the legal issues underlying the merits is de novo, the trial court retains discretion in weighing the likelihood of success on the merits against the relative harms….”
The case is Mustaqeem v. City of San Diego, 2026 S.O.S. 215.
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