Reported / Citable
Background
Imhotep Mustaqeem is a licensed sidewalk vendor who has sold packaged snacks outside Petco Park since 2009. In 2022, the City of San Diego enacted new sidewalk-vending ordinances. In June and July 2024, the City cited Mustaqeem multiple times under the new rules and twice impounded his merchandise (along with sales cash).
Mustaqeem sued for a writ of mandate, declaratory and injunctive relief, alleging the City’s regulations conflicted with California’s 2018 Sidewalk Vendor Act (Senate Bill 946, codified at Government Code sections 51036-51039). The state law expressly limits local authority to regulate sidewalk vendors, prohibits criminal penalties for vending violations, and constrains regulations to those directly related to objective health, safety, or welfare concerns. The trial court found a ‘minimal probability of success on the merits’ and denied a preliminary injunction. Mustaqeem appealed.
The Court’s Holding
The Court of Appeal reversed and remanded. Although a final trial-court decision may be imminent, the appellate court addressed the legal questions as ones of statutory interpretation subject to de novo review and capable of repetition. The court concluded that at least two of San Diego’s vending regulations directly conflict with state law on their face: (1) the regulation purporting to allow impoundment of a vendor’s items, which exceeds the limits state law places on local enforcement and effectively imposes punitive consequences beyond what SB 946 permits, and (2) the regulation restricting vending operating hours beyond those that apply to other area businesses, which lacks a state-law-permitted public-health-or-safety justification.
The trial court’s denial of preliminary injunctive relief did not adequately consider these specific facial conflicts. The case was remanded for further proceedings, with the appellate court deferring to the trial court on broader factual questions about other regulations not yet fully briefed in the appellate record.
Key Takeaways
- California’s Sidewalk Vendor Act (Government Code sections 51036-51039) significantly limits the regulatory authority of local jurisdictions over licensed sidewalk vendors.
- Local ordinances purporting to authorize impoundment of vendor merchandise are likely preempted unless tied to specific public-health-or-safety justifications recognized by state law.
- Local ordinances restricting vendor operating hours beyond those of similarly situated brick-and-mortar businesses are vulnerable to preemption challenges.
- The Sidewalk Vendor Act bars criminal penalties for vending violations; cities should rely on civil mechanisms aligned with state law.
- Vendors challenging local ordinances can seek preliminary injunctive relief on a focused legal-conflict theory, even where some factual issues remain to be developed at trial.
Why It Matters
For California cities, this decision is a significant cautionary note about the limits of local sidewalk-vending ordinances. Many municipalities have layered post-2018 regulations on top of state law, and ordinances that authorize impoundment, criminal penalties, or unjustified hour restrictions are increasingly vulnerable to preemption challenges. Cities should review their vending codes against the Government Code framework and pare back conflicting provisions.
For sidewalk vendors and their advocates, the opinion provides useful precedent — including direction that preliminary injunctive relief can be ordered on a focused-conflict theory even before the broader factual record develops. Vendors who face citations or merchandise impoundments should consult counsel about challenging the underlying ordinances under the Sidewalk Vendor Act.