1100 Municipal Building
600 4th Ave.
Seattle, WA
98104
4-25-02
VIA EMAIL TO: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]
PUBLIC COMMENT PERTAINING TO PROPOSED MOBILE-VENDING ORDINANCE
Dear Mr. Conlin et al:
After decades of maintaining that street vending in the vicinity of stadium-based sporting events is hazardous to pedestrian safety and should be completely prohibited, the City has experienced an epiphany, and now maintains that street vending in the vicinity of the stadiums is something to be desired and even encouraged.
I have in my possession a sworn declaration dated March 14, 2001, from John Zavis, who has been employed by the City of Seattle Street Use Division (SEATRAN), for 17 years. He is in charge of issuing and administering street use permits.
He writes as follows:
�I have been contacted many times by people who want to get a permit to vend to the crowds going to and coming from athletic contests, festivals, and shows, (Kingdome, Safeco Field, Husky Stadium, Seattle Center, etc). My response has always been that the Department�s long-standing policy is not to issue permits to vend on public sidewalks near venues that attract large pedestrian crowds on event days.�
He goes on to assert:
�My duty, as required by sections 15.02.020 and 15.02.025D of the Seattle Municipal Code, is to make decisions based on public safety and welfare. ***
�Sidewalk vending inhibits the flow of large crowds and has, therefore, never been permitted on sidewalks near such venues where large crowds are expected. In my 16 years in this position, I have never issued a permit to vend in the immediate vicinity of an event venue such as Safeco Field (or the Kingdome before it), Key Arena, or Husky Stadium.�
�Even on wide sidewalks, it is the Department�s experience that sidewalk vendors create bottlenecks that impede the orderly flow of pedestrian traffic and force some people into the street to get around the bottleneck, creating a potentially serious safety problem.� (Emphasis added).
�In addition to this SEATRAN policy against issuing permits near such venues, the Seattle Municipal Code made it a crime, a misdemeanor, to vend near the Kingdome before, during, and after events. While the Kingdome no longer exists, SEATRAN policy continues to be not to issue vending permits in the vicinity of large event venues.�
My first question is this: When was the City lying? Was it lying during those decades when it claimed that street vending was prohibitively dangerous, or is it lying now, when it claims that street vending is desirable and beneficial?
My next question is this: What material changes have taken place between the date of John Zavis� sworn declaration of March 14, 2001, and the present time?
Have the city sidewalks gotten wider? Are fewer pedestrians traversing city sidewalks in the vicinity of Safeco Field? Are fewer patrons attending Mariners games?
Obviously not. In my estimation, there is only one plausible reason for the City�s abrupt change of policy: a few large corporations have evinced interest in conducting commercial activity on the sidewalks surrounding the new stadiums, and Seattle�s elected representatives, recognizing these corporations as pending or present campaign contributors, has decided to accede to their demands.
When large brewing companies, with very deep pockets, ask the City for permission to engage in sidewalk vending near the stadiums, they get a very different reception than small local entrepreneurs. When large national coffee chains want to place chairs and tables in the sidewalks near the stadiums, so that their patrons can comfortably block pedestrian traffic while sipping lattes, the City grants permission as a matter of course.
When the Mariners place large metal barricades on the sidewalks adjacent to Safeco Stadium, effectively blocking more than 90 percent of the sidewalk, the City doesn�t say a word about pedestrian safety. One of my clients, a long-time vendor in the stadium vicinity, has dozens of photographs showing pedestrians being forced into the path of vehicular traffic on S. Royal Brougham Way by these sidewalk barricades. This hazardous situation has been brought to the attention of City personnel on numerous occasions, yet no steps have ever been taken to ameliorate the danger to the public, despite the fact that a safe solution is readily available. (There is ample space within the grounds of Safeco Field itself for fans to queue up prior to being granted admission into the stadium proper. If a pedestrian is ever killed while being forced into the street by these dangerous practices followed by the Mariners and tolerated by the City, I hope that both the City and the Mariners are named in a massive lawsuit.)
It is clear that the City�s ostensible regard for public safety is nothing but a stalking horse intended to provide justification for the imposition of additional fees. The City has known for at least two years that scores of people were engaged in illegal vending around the stadiums, and yet it has taken no action whatsoever to enforce the law. During those two years, scores of complaints were filed with the City, including innumerable calls to 911 and countless letters. One of my clients even submitted a photograph album containing a daily record of illegal vendors plying their goods from public sidewalks over the timespan of two entire baseball seasons.
If sidewalk vending were truly dangerous, the City would have been inexcusably negligent to permit such activities to continue unabated. But the City took no action at all. And miracle of miracles, no pedestrians were harmed as a result of the vending activity.
Although the City�s assertion that the proposed ordinance is necessary from a public-safety standpoint is dubious at best, there are other, more compelling reasons to regulate vending activity.
Legal vendors contribute to the City�s tax base; illegal vendors do not. Legal vendors have made the effort to comply with all the applicable rules and regulations; illegal vendors have not. Legal vendors are law-abiding citizens; illegal vendors are not-- not only are they lawbreakers in terms of vending, they are often violent and unsavory characters, who themselves pose a danger to the public, irrespective of any general hazard their vending activity may pose to pedestrians. One of my clients, a long-time vendor, was physically assaulted by illegal vendors. (The assault was videotaped, and charges were filed against the perpetrators. The case would have proceeded to trial but for the fact that the City Prosecutor conveniently failed to timely provide the defendants with a copy of the videotape. My client found this highly suspicious, since he had complained to the City numerous times about these illegal vendors, to no avail.)
Obviously, illegal vendors must be gotten rid of. However, this task can easily be accomplished without ANY new ordinance, and without the necessity of ANY additional expenditures.
Though the City seems bent on willfully ignoring this fact, the destruction of the Kingdome, and the attendant nullification of the City ordinance prohibiting mobile vending in its vicinity, did not leave the City with no mechanism to enforce its restriction against mobile vending in the area.
Seattle Municipal Code 15.17.005 requires that vendors operating in public places obtain a street-use permit from the City, while Seattle Municipal Code 15.50.040 provides that any vendor operating in a public place without a street-use permit is committing a criminal offense, upon conviction of which penalties may be imposed consisting of a $3,000.00 fine and up to 30 days in jail.
These long-established ordinances can easily be enforced by any police officer. Cops are supposed to prevent criminal offenses, and vending without a permit is a criminal offense.
All the City must do to resolve the current problem with illegal vendors is assign a single police officer to walk around the stadiums and verify that all the vendors have the proper permits. The officer should be instructed to warn any unpermitted vendors that further violations would result in the imposition of a $3,000.00 fine and 30 days in jail.
Faced with such penalties, I feel extremely confident that illegal vendors would not return, even if the officer conducted his inspection only once a month.
One of my clients, a long-time vendor, was arrested a number of years ago by three undercover police officers and charged, under this ordinance, with illegally vending from city sidewalks.. Needless to say, he has been extremely careful to avoid violating this law ever since.
It is completely ridiculous for the City to argue that it must pay superfluous City employees exorbitant overtime wages to achieve an objective that can easily be accomplished by a single regular-shift police officer.
Interestingly, it appears that police officers are have become reluctant to conduct any enforcement of vending-related ordinances. On two occasions, one of my clients, a long-time vendor, sought to hire an off-duty Seattle police officer to enforce the above-referenced ordinances. He submitted all the appropriate paperwork to �Seattle Security�, the Seattle Police guild/hiring hall/union, delineating the ordinances needing enforcement and the hours during which violations were taking place. Not a single off-duty police officer was willing to take the job.
Incidentally, an off-duty Seattle Police officer can be hired through Seattle Security at the rate of $35 dollars per hour, with a four-hour minimum. According to a representative of Seatrans, the overtime rate of pay which would be commanded by each of the two inspectors called for under the proposed ordinance would be at least $55 an hour.
But any debate over the amount to be paid superfluous City employees under the proposed ordinance is essentially a red herring, because it is entirely unnecessary for the City to assess any additional fees whatsoever.
Furthermore, the proposed fees may well constitute a violation of Initiative 601. In effect, the City is attempting to impose a user fee for a service that has historically been funded by general tax revenue.
There is yet another issue that the City Council has failed to address in promoting this proposal, namely, the blatant injustice which would be perpetrated against entrepreneurs who previously submitted applications for street use permits, and saw those applications rejected by the City prior to the City�s abrupt change of heart.
One of my clients, a long-time vendor who conducts his business from leased property, became convinced some years ago that that the City�s opposition to sidewalk vending was essentially untenable. He therefore applied, on multiple occasions, for street-use vending permits, both before and after the demolition of the Kingdome. Each of his applications was denied, and each time, the reason given by the City was that sidewalk vending was dangerous.
My client even went so far as to sue the City, alleging that its refusal to issue a permit was arbitrary and capricious. Of course, the City disputed his contention, and insisted that such mobile vending was hazardous and undesirable. On the strength of the City�s assertions, (which the City has since admitted were falsehoods), my client�s case was dismissed.
All this transpired barely a year ago.
The City�s plan to arbitrarily change its longstanding policy against mobile vending contains a massive underlying element of unfairness. My client, in reliance upon the representations made by John Zavis in his declaration, entered into long-term lease agreements with private property owners on the expectation that sidewalk vending in the area would continue to be prohibited. Now, changing its policy 180 degrees, the City proposes to allow vending to take place on the sidewalk. Even with the proposed fee factored in, sidewalk vending can be done at a far lower cost than vending from private property. Thus my client could easily be forced out of business by the City�s arbitrary and irrational change of opinion.
My client, as well as any other long-time vendors who have made substantial, long-term investments in their businesses in reasonable reliance upon the City�s longstanding representations, must be protected from the deleterious effects of the City�s capricious change of heart.
Given the City�s contradictory statements, it seems quite possible that the City might be estopped from enacting this new ordinance and issuing regular street-use permits.
Next, I�d like to briefly address the City�s decision to maintain a purportedly �complete ban� on mobile vending from the sidewalks immediately adjacent to Safeco Field. Although the City represents this as a uniform policy applicable to all, such is not really the case. Under the proposed ordinance, the Mariners would continue to be allowed to operate their own souvenir stands from sidewalk areas which are wholly indistinguishable from City sidewalks- sidewalk areas which serve the exact same purpose and function as City sidewalks, and which are as crucial to the safe passage of pedestrians as every other portion of the adjacent sidewalk. Evidently, the Mariners will also continue to be allowed to set up broadcast booths and new-car-sales displays on this sidewalk property, which is, for all intents and purposes, the public sidewalk.
Thus, in the name of public safety, the City seeks to ban all direct competition with the Mariners, while allowing the Mariners to endanger public safety with impunity.
It might be easily argued that the City, in granting this preferential treatment to the Mariners, is violating the state-imposed ban on providing the Mariners with any further subsidies or benefits.
If vending on the sidewalks adjacent to Safeco Field is truly dangerous, as the City claims, then the City would have sufficient justification, (and indeed the obligation), to utilize its police powers to prohibit the Mariners from vending on these sidewalks, regardless of whether the Mariners owned any portion of the sidewalks. That the City is allowing the Mariner�s to vend in this manner, (thereby, according to the City�s own logic, endangering the public), while at the same time the City prohibits anyone else from engaging in activity which is indistinguishable from the Mariner�s activity, (and which will not pose any different degree of �public danger�) makes it clear that the City�s position is inherently indefensible. Either vending on these sidewalks is dangerous, meaning that all vending should be prohibited, or it is safe enough to allow, meaning that other parties in addition to the Mariners should be permitted to engage in this activity.
On a somewhat related issue, it is also untenable for the City to effectively grant property owners a private-property interest in adjacent public sidewalks. At the public hearing held on the afternoon of April 25th, the City admitted to being cognizant of the fact that many private property owners were charging a fee in exchange for granting mobile-vending applicants �permission� to use adjacent public sidewalks. For the City to grant such a private-property interest appears to constitute a violation of Article 8, Section 7 of the Washington State Constitution. The activist organization �Taxpayers on Strike� is conducting an investigation into the situation, with an eye towards suing the City.
It is ironic that the excuse offered by the City for following this unconstitutional policy is that it is based on �past history�, meaning that it is the way that the City has �always done it�. Using this rationale, the very proposal under consideration must be rejected, as it constitutes a radical departure from the City�s past history.
Moving on to yet another issue, it is clear that the City�s proposed enforcement mechanism is not only completely unnecessary, it is distracting the City from a closely related, and perhaps even more urgent problem.
There is a crucial need for the Seattle/King County Department of Public Health to adequately enforce the conditions and requirements of existing Health Department permits issued to stadium-area vendors, (a matter which is completely distinct from Street Use permits).
Although Health Department permits are not required by vendors who sell pre-packaged food items like peanuts, such permits ARE required by vendors who sell hot dogs. However, the City is criminally lax in fulfilling its obligation to ensure ongoing compliance with crucial health-safety requirements. The current inspection system is completely insufficient to adequately protect the public.
For example, one hot-dog vendor near Safeco, Seattle Sausage (located at 330 Royal Brougham, at the SW corner of 3rd Avenue S. and S. Royal Brougham), has been cited by the Health Department with six �RED CRITICAL� violations in only eight inspections. (According to the Health Department definitions, �RED CRITICAL� violations are those �with the highest risk of causing food-borne disease.�)
Worse yet, there has not been any consistent followup. Seattle Sausage received a RED CRITICAL violation on October 9th of last year. According to Health Department records, there has STILL been no followup inspection (see http://www.decadeonline.com/insp.phtml?agency=skc&forceresults=1&record_id=PR0054102).
If the City is truly concerned about public safety, it is of paramount importance that it conducts more frequent inspections of hot dog vendors. Such inspections cannot be completed by police officers, who lack the proper expertise. Nor can such inspections be done by SEATRANS personnel, regardless of whether they receive overtime wages or not.
The proposed ordinance would do NOTHING to protect the public from outbreaks of food-borne diseases emanating from hot-dog stands in the vicinity of Safeco Field.
Further illustrating the City�s inconsistent, hypocritical stance regarding public safety, the Health Department has exempted Seattle Sausage from the codified Health Department requirement that all mobile vending carts have toilet facilities which are �readily accessible� for use by employees, and that such toilet facilities be located �within 200 feet� of the food cart. (King County Code, 5.36.110).
There are no accessible restroom facilities within 200 feet of the Seattle Sausage cart at 330 Royal Brougham, but the Health Department, for some indefensible reason, has apparently issued a variance which allows the cart to be operated upon the owner�s apparently unsubstantiated assurance that he will purchase season Mariners tickets for all his employees, and that his employees will use the restrooms in Safeco Field.
The restrooms in Safeco Field are much further away than the required 200 feet. Furthermore, the restrooms are not �readily accessible�, as is required by the food code. In addition, Safeco�s restrooms are often extremely crowded and busy, reducing the likelihood that an employee will actually go to the trouble of traversing all that distance, waiting in line, and returning, when the alternative is simply to pee in the space between two nearby parked cars.
Even if we accept the questionable premise that the operator of the stand actually does purchase season tickets for all his employees, (a supposition that the Health Department admits has not been verified), we must accept the even more unbelievable fantasy that these tickets are actually reserved for his employees, rather than being scalped.
With Mariners games selling out on a regular basis; with substantial returns to be had selling tickets; with an inspection schedule that is highly sporadic at best; with friendly scalpers ready to provide �loaner� tickets in the unlikely event that an inspection does occur; there is absolutely no logical reason to believe that any tickets allegedly purchased by Seattle Sausage are ever used for the purpose that the Health Department naively expects.
Note also these two related facts: 1) the hot dog stand remains in operation during and after the game, and 2) the few inspections which do occur take place prior to the start of the game, meaning that game tickets possessed by the permitee (if any) could still be scalped subsequent to the inspection.
At the very least, it is highly questionable for the Health Department to gamble with public safety in this manner, in direct contravention of the food code.
I will be the first to say �I told you so� when someone contracts Hepatitis B or e-coli from eating at an unsafe hotdog stand. I will also be the first to file suit against the City for failing to adhere to its own food-safety regulations.
In closing, I urge the City Council to reject the proposed ordinance as ill-advised and completely unnecessary.
I also urge the City to use the existing ordinances, referenced above, to launch a severe crackdown on illegal vending.
Finally, I urge the City to proceed in a fair and equitable manner if it does decide to permit street vending. Individuals whose previously submitted street-vending applications were denied for reasons which the City now disavows should be granted precedence in the issuance of permits for the locations they previously sought.
Cordially,
Peter Cogan, Attorney at Law
POST YOUR COMMENTS ON THE
SEATTLEREPORTER DISCUSSION FORUM
ARE THE MARINERS BEHIND THE CITY'S EFFORTS TO
DRIVE VENDORS OUT OF BUSINESS? ASK THEM!
OFFICIAL MARINERS MESSAGE BOARD
TELL THE CITY COUNCIL AND THE MAYOR WHAT YOU THINK OF THEIR ATTEMPT TO DRIVE VENDORS OUT OF BUSINESS
OFFICIAL CITY OF SEATTLE FEEDBACK FORM
1) Enforce the law as it's written;
2) Don't impose ANY additional fees on legal vendors of pre-packaged food;
3) Don't allow the Mariner's to dictate City policy;
4) If public safety is truly the City's motivating concern, then impose the same restrictions on the Mariners as on everyone else;
5) Devote adequate resources to ensuring that vendors of food cooked on-site are not selling unsafe products.
COUNTERPUNCH.COM
ANTIWAR.COM
COPWATCH.COM
JUSTICEFILES.ORG
VDARE.COM
WORLDNETDAILY.COM
TELL THE CITY WHERE TO GO
MAYOR NICKEL'S LIST OF POTHOLES TO BE FILLED