NULR of Note

Immigrants, those with legal status and those without, individuals returning from incarceration, and individuals with time-consuming childcare and other family obligations often look to start microenterprises like street vending to provide for themselves and their families. However, many municipalities in the United States apply a penal approach to street vending, criminalizing it as a form of vagrancy. Even Los Angeles, a city known for its street vending culture, criminalized the practice outright until 2019. Other cities have permitted vendors to obtain licenses but treat vending in violation of that license as a criminal offense. This continued criminal treatment is taking place even as street vending is celebrated in mediums like Netflix’s Street Food and as cities relax rules for a hip new generation of food trucks.

In the past few years, advocates have pushed to decriminalize street vending around the country. Following the 2016 election, a coalition of street vendors in California successfully pushed to decriminalize street vending statewide. California law now prohibits localities from outlawing street vending outright or treating any violation of street vending regulations as a criminal offense, limiting penalties to administrative fines payable only on an as-needed basis. Meanwhile, high-profile vendor arrests in New York City and Washington, D.C. touched off protests and advocacy around street vending in those cities.

The coronavirus pandemic in 2020 and related closures presented cities with a choice on how to deal with street vending. Los Angeles and Washington, D.C. initially responded to street vendors very differently. Citing the risk that the virus could spread through large crowds gathered at popular vendors Los Angeles city officials called for an effective moratorium on street vending during the crisis. In Washington, D.C., public health clinics approached individual vendors and trained them on becoming “community health ambassadors.” Clinics gave vendors hand sanitizer and other supplies to hand out and trained ambassadors how to teach customers and community members about hygiene and methods to stem the spread of the virus.

These two cities reflect different views of the role and value of street vendors. Los Angeles saw the risk of crowds and took steps to alleviate that risk. The Washington, D.C. approach, on the other hand, sees street vendors as a community asset. Vendors not only provide a valuable service though serving food, they are also integral parts of the fabric of urban communities. “They know when commuters come and go. They know what trends are in vogue, what customers do or do not want. They know which kids are cutting school and how often police patrol.” Now, in a public health emergency, they can be tapped to assist in pandemic response.

Eventually, street vendors in Washington, D.C. were forced home by the city’s stay-at-home order and were unable to continue their public health outreach. Street vendors in both cities now find themselves facing the brunt of the economic consequences of shutdown orders around the country. With their main source of income gone and largely unable to access to small business assistance, unemployment insurance, and other government assistance, these excluded workers are turning to mutual aid networks to meet basic needs.

The laws in these cities treat (or, in Los Angeles’s case, treated) street vending as a vagrancy offense, viewing low-income and largely immigrant vendors as criminals rather than as entrepreneurs. Under this view, vendors are a nuisance, a threat to public health, and poachers of legitimate brick and mortar business. “[W]ithout adequate enforcement, the consuming public was at risk to fraud and health hazards . . . . District Businesses also suffered from this poorly regulated industry . . . . [C]ertain vending carts are not aesthetically pleasing to all or do not align with the aesthetic or historic nature of the neighborhood.” Fostering economic opportunity for vendors and enriching the community by their presence is a secondary concern, and so vending is tightly regulated and often criminalized.

By criminalizing street vending, cities raise barriers to entry for vulnerable entrepreneurs, unduly burden those entrepreneurs most at risk, and detract from the vibrancy of communities. The coronavirus pandemic situation is fluid, and the steps that Los Angeles took may prove to have been necessary to prevent the spread of the virus. That said, the deputizing of street vendors in Washington, D.C. provides a glimpse of a post-COVID-19 world in which vendors are embraced as essential members of urban communities and not a scourge to be regulated away.

Joseph Pileri is a Practitioner in Residence in the American University Washington College of Law. He received his J.D. from Harvard Law School in 2010 and his B.A. from University of California, Los Angeles in 2007.